Glenn v. State

Citation154 Ind.App. 474,290 N.E.2d 103
Decision Date14 December 1972
Docket NumberNo. 2--672A13,No. 2,2--672A13,2
PartiesJames Michael GLENN, Appellant, v. STATE of Indiana, Appellee
CourtCourt of Appeals of Indiana

F. Pen Cosby, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

STATON, Judge.

STATEMENT ON THE APPEAL: James Michael Glenn was charged by affidavit with possession of heroin on June 14, 1971. 1 He waived arraignment and pleaded not guilty. A motion for change of venue from the county was denied. On January 4, 1972, a jury found James Michael Glenn guilty, and he was sentenced to the Indiana Department of Correction for a term of not less than five nor more than twenty years. His motion to correct errors raises for issues:

'A. THE VERDICT IS CONTRARY TO LAW IN THAT IT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

'B. THE COURT ERRED IN FAILING TO SUSTAIN THE DEFENDANT'S

MOTION FOR CHANGE OF VENUE FROM THE COUNTY.

'C. THE COURT ERRED IN EXCUSING A PROSPECTIVE JUROR OVER DEFENDANT'S OBJECTION.

'D. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S ORAL MOTION FOR AN EARLY TRIAL.'

We find no errors and affirm the trial court's judgment in our opinion which follows:

STATEMENT OF THE FACTS: On February 2, 1971, Police Officers Donald Goeden, Carl Robertson and Elmer Comb observed James Glenn leave a house at 2233 North Alabama Street and cross the street. The Officers had the house under surveillance for drug activity. They had received complaints concerning drug traffic at this address and information that Glenn would be at that address with drugs in his possession. Glenn turned the corner, looked back and saw the Officers. Then, he took two yellow envelopes from his pocket and dropped them on the ground. Officers Goeden and Combs stopped Glenn, and Officer Robertson retrieved the envelopes and performed the Marquis Reagent Test on the contents of one of the envelopes. This field test indicated that the substance in the envelopes contained a derivative of opium. Later tests performed at the Police Crime Laboratory showed that the substance in the envelopes contained heroin.

Glenn was placed under arrest but not taken to Police Headquarters because he agreed to provide the police with information concerning the drug traffic in Indianapolis. He agreed to contact Goeden the next day. When he failed to do so, Officer Goeden filed a warrant against him. Glenn was finally located on May 27, 1971 and taken into custody.

STATEMENT ON THE LAW:

ISSUE ONE: Glenn contends that the evidence was not sufficient to convict him of possession of heroin. On appeal, this court will consider only that evidence most favorable to the State, together with all reasonable inferences which may be drawn therefrom. The conviction will be affirmed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that Glenn was guilty beyond a reasonable doubt. Fuller v. State (1971), Ind., 271 N.E.2d 720; Pfeifer v. State (1972), Ind.App., 283 N.E.2d 567. The facts most favorable to the State show that the police officers had received information that there was a large amount of drug traffic being conducted at 2233 North Alabama, Indianapolis, Indiana. They were further informed that James Glenn would be present at the North Alabama address with a large quantity of heroin on February 2, 1971.

Acting upon this information, the officers placed the residence under surveillance. At approximately 11:00 o'clock A.M., they observed James Glenn come out of the home on 2233 North Alabama. As he proceeded up Alabama Street, the officers followed in their unmarked police car. As defendant was walking up Alabama, he turned and saw the car. He testified that he knew the officers before they arrested him. After spotting the car, Glenn took two envelopes out of his pocket and threw them in the grass. Officer Robertson retrieved the packet while the other two officers detained Glenn. Officer Robertson then performed the Marquis Reagent Test and it showed positive. Glenn was then placed under arrest for possession of heroin.

When Glenn threw away the packets before the police officers even approached him, he abandoned the property. Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671; United States v. Martin (3rd Cir. 1967), 386 F.2d 213 '. . . Defendant's voluntary act of throwing the packets . . . (into the grass) must be deemed an abandonment of his interest therein. Vincent v. United States, 337 F.2d 891, 896--897 (8th Cir. 1964), and therefore subject to the Government's appropriation. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). Once the packets were identified, the officers were warranted in believing that a felony was being committed.' United States v. Martin, supra, 386 F.2d at 215.

This evidence is also sufficient to show defendant had possession and control over the heroin contained in the envelopes. Patterson v. State (1970), Ind., 262 N.E.2d 520.

James Glenn's remaining arguments on this issue pertain only to the weight and credibility of the evidence presented against him. This court will not weigh the evidence or determine the credibility of witnesses. Sanchez v. State (1971), Ind., 267 N.E.2d 374.

The evidence was sufficient beyond a reasonable doubt to support the conviction. We find no error as to Issue One.

ISSUE TWO: As to Issue Two, James Glenn contends that the trial court erred in failing to sustain his motion for change of venue from the county. Glenn's written request for change of venue from the county was filed on October 12, 1971 and reads as follows:

'Comes now the defendant by counsel and having orally moved at arraignment for a change of venue from Marion County, Indiana, hereby formally moves as follows:

'1. That he be granted a change of venue from Marion County, Indiana, for the reason that he has been previously convicted in Marion County Criminal Court and is presently on parole.

'2. That he believes that he cannot receive a fair and impartial trial in Marion County, Indiana, for the aforesaid reasons.

'3. That he requests that this cause be venued to one of the following counties and in order of preference listed as follows: Johnson, Shelby, Boone, Hancock, Morgan, Hendricks or Hamilton.

'WHEREFORE, defendant respectfully moves that he be granted a change of venue from Marion County, Indiana, and for all other relief just and proper in the premises.'

In State ex rel. Allison v. Criminal Court of Marion County (1958), 238 Ind. 190, 149 N.E.2d 114, our Supreme Court stated that:

'The law is settled in this state that the granting of changes of venue from the county is discretionary with the court in criminal cases, except in cases when the punishment is death.' State ex rel. Allison v. Criminal Court of Marion County, supra, 238 Ind. at 192, 149 N.E.2d at 115.

See also Johnson v. State (1972), Ind.App., 281 N.E.2d 922.

A hearing was held on Glenn's motion October 22, 1971. After argument was heard by the court, the motion was denied.

The substance of the motion alleges that Glenn cannot receive a fair and impartial trial because he was previously convicted in Marion County Criminal Court. However, there are no supporting affidavits as to why this previous conviction will preclude a fair trial in Marion County. Glenn has failed to include a transcription of the hearing upon the motion. 2 Therefore, we are unable to discern what evidence was presented to the trial court and must presume no abuse of discretion. In Hartsfield v. State (1950) 228 Ind. 616, 622, 94 N.E.2d 453, 455, our Supreme Court stated that:

'. . . We cannot presume that he (trial judge) abused this discretion. If we indulge any presumption it must be in favor of his actions.'

We have also read the entire record in this case and we find no indication that James Glenn did not receive a fair and impartial trial. No abuse of discretion is shown. Johnson v. State, supra.

ISSUE THREE: James Glenn's third contention of error is that the trial court erred in excusing a prospective juror over defendant's objection. James Glenn is under a duty to show on appeal that the error he complains of prejudiced his cause. Turner v. State (1972), Ind., 287 N.E.2d 339.

His contention of error is that one...

To continue reading

Request your trial
23 cases
  • State v. Arnett
    • United States
    • Arizona Supreme Court
    • 14 Abril 1978
    ...this is so even where the judge acts on his own motion. See State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); Glenn v. State, 154 Ind.App. 474, 290 N.E.2d 103 (1972); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974); Dragovich v. Slosson et al., 110 Cal.App.2d 370, 242 P.2d 945 (195......
  • Gubitz v. State
    • United States
    • Indiana Appellate Court
    • 1 Marzo 1977
    ...consider matters relating to such subpoena. Senst v. State (1974), Ind.App., 319 N.E.2d 663 (transfer denied); Glenn v. State (1972), 154 Ind.App. 474, 290 N.E.2d 103 (transfer Thus the only evidence adduced by appellants is the fact that after trial Alexander was treated favorably. However......
  • Dunbar v. State, 2--174--A--22
    • United States
    • Indiana Appellate Court
    • 21 Mayo 1974
    ...a question is to be presented on review as to the sufficiency of the evidence to sustain a conviction.' In the case of Glenn v. State (1972), Ind.App., 290 N.E.2d 103, Glenn contended he had made an oral request for a speedy trial. There was nothing in the record to show he had made such a ......
  • White v. State, 2--673A142
    • United States
    • Indiana Appellate Court
    • 26 Septiembre 1974
    ...(1967), 248 Ind. 501, 229 N.E.2d 469 (marijuana); Pinkston v. State (1968), 251 Ind. 306, 241 N.E.2d 138 (morphine); Glenn v. State (1972), Ind.App., 290 N.E.2d 103 Taylor v. State (1962), 172 Tex.Cr.App. 461, 358 S.W.2d 124 (expert testimony establishing that dolophine, which was not liste......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT