O'Grady v. State

• Decision Date: 22 July 1985
• Docket Number: No. 4-184A24,4-184A24
• Citation: 481 N.E.2d 115
• Parties: George O'GRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 115

481 N.E.2d 115

George O'GRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-184A24.

Court of Appeals of Indiana,

Fourth District.

July 22, 1985.

Charles A. Beck, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

George O'Grady supplicates this court to grant his appeal from a jury verdict finding him guilty of possession with intent to deal in a Schedule I controlled substance, heroin (IND.CODE 35-48-4-2, Class B felony), upon which verdict the trial court sentenced him to ten years. Among his issues he attacks the State's striking of a juror, the admission of hearsay evidence, and the giving of an improper instruction. We need not find error with regard to these issues because we are in agreement with O'Grady's contention there was insufficient evidence to support a conviction for dealing. We reverse.

FACTS

On August 11, 1983, Officers James Wurz and Daniel Harvey, narcotics investigators for the Indianapolis Police Department, received a tip from a known informant "[State]: Did you find any evidence of heroin used inside of that automobile?

that O'Grady was selling heroin from his automobile at the corner of Indiana Avenue and St. Clair Street. In response to the tip, the two officers drove to the location in an unmarked vehicle and spotted O'Grady alone in his car, parked out in the street about 100 feet from the intersection. They drove up from behind O'Grady's car as an unidentified person walked away from it and pulled up parallel to it. Officer Wurz jumped quickly out of the car and flashed his badge in O'Grady's direction. O'Grady gasped loudly and threw a plastic bag out of the passenger's window in the direction of two old winos sitting on cement blocks. Wurz ran around the car and picked the package up, counting 26 tin foil packets within. Preliminarily determining the packets contained heroin, the officers searched O'Grady's person and his automobile. They found no heroin paraphernalia within the car nor observed any identifiable marks on O'Grady's body showing him to be a heroin user (although Wurz testified heroin can also be ingested through the nose):

[WURZ]: Use? No sir I did not.

Q. What--basing this upon your experience, again, are the ways or way that heroin is ingested by the user?

A. It is snorted through the nose or injected into the vein.

Q. Alright, and that is--obviously that injection is by the syringe method?

A. Yes.

Q. And you did not find any syringes in this automobile?

A. No sir I did not.

Q. Did you find any on the Defendant's person?

A. No I did not.

Q. Did you notice any visible needle marks on the Defendant?

A. No I did not."

Record, p. 93.

At trial, a police chemist identified the 2.0790 grams of powdery substance as containing 0.0449 grams of heroin. In addition, Officer Wurz testified that one method of packaging heroin for sale was in tin foil packets, or "bindles," usually sold at $10 apiece, a 2% strength (as here) indicating perhaps a new dealer trying to enter the Indianapolis market.

"Q. How is heroin normally sold Detective?

A. Well, in Indianapolis it is sold by a little capsule, a balloon, and usually in tin foil.

Q. Alright, I am sorry, but you will have to speak up a little bit.

A. The most common method in August was a capsule, a clear capsule, a gelatin capsule. Towards the end of August it changed--or the beginning of August, rather it changed to tin foil packet, and there are also balloons they sell it in.

A. Alright, and at the local level again, in Indianapolis, is there any norm, any normal amount that a user of heroin normally buys at one time?

A. Packets like this, I would say two--three at the most.

Q. Alright, and in August, on or about August 11, 1983, to your knowledge was the going market price for one bindle similar in size to what you confiscated here?

A. Ten dollars. It is called a dime bag."

Record, pp. 93-94. He also stated that two of these particular bindles would be necessary to comprise a single dose for a regular user. However, he also stated that a heavy user might ingest two half-T's (half teaspoons) a day, with half-T's costing $125.

"Q. And what other than dime bags is heroin sold in?

A. Dime, thirty, fifty--that is, thirty dollars, fifty dollars--half a "T", which is half a teaspoon--teaspoon--a spoon, or a dipper, which is the same size. It is a tablespoon.

Q. Alright, and for instance, you mentioned half a "T". How much would that go for, or in August of '83 how much would it have gone for?

A. Half a "T" is $125.00.

Q. On the bindles, the size which you found in State's Exhibit 1, how many doses would be contained in one such bindle?

A. Well I think you would use two of them.

Q. So it would be half a dose?

A. Well, it would all depend on the person themselves. If they are a strong user it takes more, and if they was just beginning, they would just take one.

Q. Alright, if they were a strong user how many would they use?

A. They can go all the way up to a half a "T" at a time maybe twice a day."

Record, pp. 94-95. The only corroborative evidence offered by the other arresting officer, Officer Harvey was that he found no evidence of drug use in O'Grady's car and had observed no needlemarks on his person.

O'Grady testified he threw something else out of his car, but the jury evidently chose to believe the State's evidence and found him guilty of dealing in heroin.

DECISION

Sufficiency of the Evidence

O'Grady contends the jury verdict here was contrary to law because the State failed to present sufficient evidence of the offense of dealing, particularly of the element of requisite intent. We agree.

The specific crime of which O'Grady was charged is at I.C. 35-48-4-2:

"A person who:

* * *

* * *

(2) possesses, with intent to ... deliver, a controlled substance, pure or adulterated, classified in schedule I [heroin] ...

commits dealing in a schedule I ... controlled substance, a Class B felony." (Emphasis added.)

O'Grady alleged the element of "intent to deliver" was not supported by the evidence most favorable to the verdict. Because intent is a mental state, the trier of fact must usually "resort to reasonable inferences based upon examination of the surrounding circumstances to reasonably infer its existence." Farno v. State (1974), 159 Ind.App. 627, 308 N.E.2d 724, 725. We cannot glean substantial evidence of probative value from this record to find O'Grady possessed the requisite intent.

The record simply reveals O'Grady threw a package of 26 bindles of half-doses of 2% heroin out of his car and that his outward physical appearance, after a cursory inspection, seemed to indicate he himself was not a user. There is nothing in the record to indicate a strip-search was conducted nor what parts of O'Grady's anatomy the officers checked in order for them to state they observed no visible needlemarks. Officer Wurz also testified heroin is usually sold in such bindles (the obverse inference being it was also so purchased) and that, ordinarily, a user only buys two or three bindles at a time. However, a close scrutiny of Wurz's evidence also reveals that O'Grady possessed $260 worth of heroin (26 $10-bindles) and that a heavy user may need a $250 quantity in a single day to support his habit. We believe a case nearly on point disposes of the issue of intent in O'Grady's favor.

In Pettigrew v. State (1975), 165 Ind.App. 390, 332 N.E.2d 795, the defendant was convicted of the sale of heroin under an earlier, similar statute. See 1971 Ind.Acts, P.L. 468 Sec. 1 et. seq. Pettigrew went to the door of a home which the police had under surveillance, returned to the edge of the porch from whence he came, dropped a white envelope beside the porch steps then returned to the door. The police recovered the envelope, which was labelled "Pettigrew, Mabel" and contained 40 individually wrapped foil packages of heroin. Pettigrew denied any connection with the drugs (as did O'Grady here). As this court stated in Pettigrew, and what we find applicable here:

"The record in the instant case is devoid of evidence tending to prove any transaction or communication between [the defendant] and any other person with reference to the heroin. Likewise there is no evidence tending to prove the existence of a distribution scheme or prearranged sale. Furthermore, the manner in which [the defendant] disposed of the heroin would not support an inference of intent to deliver or dispense."

165 Ind.App. at 393, 332 N.E.2d at 798. We thus find O'Grady's situation lacking in the characteristics of a dealing offense for want of evidence, even circumstantial evidence supporting only an inference of dealing. See Meiher v. State (1984), Ind., 461 N.E.2d 115 (actual sale); Henry v. State (1978), 269 Ind. 1, 379 N.E.2d 132 (actual sale); Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793 (actual sale); Romack v. State (1983), Ind.App., 446 N.E.2d 1346 (intent to deliver based on quantity).

Our opinion in Thompson v. State (1980), Ind.App., 400 N.E.2d 1151, closely parallels the case here where no actual sale is in evidence, unlike the representative cases cited above. But in Thompson, the State did introduce testimony of a reliable informant that an individual named "Bob" (defendant's name was Robert) had a large quantity of heroin for sale and was present at a restaurant where the defendant was found as directed and thereby arrested. Defendant was apprehended with three separate caches of heroin, a police officer testified the quantity was sufficiently large to indicate resale, and a polygraph examination showed defendant was not truthful when asked if he had possessed the heroin with the intent to deliver. No such supportive evidence exists here; rather, in the absence of evidence of sale, an inference that the heroin was only for personal use is just as, if not more, tenable. We believe O'Grady...