Glenn v. State
Citation | 154 Ind.App. 474,290 N.E.2d 103 |
Decision Date | 14 December 1972 |
Docket Number | No. 2--672A13,No. 2,2--672A13,2 |
Parties | James Michael GLENN, Appellant, v. STATE of Indiana, Appellee |
Court | Court of Appeals of Indiana |
F. Pen Cosby, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.
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.
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.
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 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:
'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 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...
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