Hutcherson v. State

• Decision Date: 16 October 1978
• Docket Number: No. 2-1076A384,2-1076A384
• Parties: Marvin HUTCHERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 877

381 N.E.2d 877

178 Ind.App. 8

Marvin HUTCHERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-1076A384.

Court of Appeals of Indiana, Fourth District.

Oct. 16, 1978.

Rehearing Denied Nov. 22, 1978.

See 382 N.E.2d 983

Lawrence O. Sells, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

The appellant, Hutcherson, was charged by information with possession of over ten grams of heroin. The case was tried to a jury and the appellant found guilty. The judge sentenced him to a determinate term of eight years, whereupon Hutcherson perfected this appeal.

Hutcherson challenges the sufficiency of the evidence supporting his conviction on two grounds. First, the State did not adequately prove possession, and second, the State failed to prove that the amount of heroin in question was over ten grams. With regard to the former we affirm. With regard to the latter we reverse and remand for resentencing.

I.

When determining the sufficiency of evidence, this Court will neither weigh the evidence nor determine credibility, but will look only to the evidence favorable to the judgment and all reasonable inferences arising therefrom. If there is substantial evidence of probative value in support of each element, the judgment will not be disturbed. Harris v. State (1978), Ind., 377 N.E.2d 632.

The evidence most favorable to the State is that on November 7, 1975, four or five police officers went to a certain residence to serve a search warrant for heroin. In response to their knock, a woman within drew aside the curtain behind the glass door and looked out. An officer held his badge up to the glass and said, "police officers, we have a search warrant." The woman backed up, turned, and ran towards the kitchen in the back of the house yelling "Marvin, its the police." The officers kicked in the door and followed her. In the kitchen they saw Hutcherson and two others, a man and a woman. Hutcherson and the man turned and ran up the stairs leading from the kitchen, with two officers following closely behind. Hutcherson was found "hiding" in a darkened bedroom, and the other was in the bathroom from which came sounds of the toilet flushing. The officer in pursuit found the man sitting on the edge of the bathtub using the telephone, and three aluminum foil bindles in the toilet.

The officers brought the two men downstairs and assembled everyone present in the house in the living room. There they read the warrant before commencing their search. The officers found a cigarette package on the kitchen table containing a brown powder which field tested as an opium derivative. They also found a record album cover with a powdery substance on it that "appeared" to be heroin. The album cover was in the kitchen sink with hot water running over it. The powder was not tested. Hutcherson was then informed of his rights and asked for identification information. He gave that residence as his address. Further testimony at trial disclosed that the woman who answered the door lived at that residence, that Hutcherson was her boyfriend and supported her, and that he had a key to the residence. The police chemist found the substance in the cigarette package to be heroin. On the basis of this evidence Hutcherson was found guilty of possession.

Possession of a controlled substance may be actual or constructive. Where a conviction is based on the latter, there must be evidence showing the accused's "intent and capability to maintain control and dominion" over the substance. Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557; Mills v. State (1978), Ind.App., 379 N.E.2d 1023. Proof of a possessory interest in the premises where a controlled substance is found is adequate to show capability to control. Mills v. State, supra; Corrao v. State (1972), 154 Ind.App. 525, 290 N.E.2d 484. The element of intent is proved by evidence of the accused's knowledge of the nature of the substance and its presence. Thomas v. State, supra; Mills v. State, supra. This element may be inferred where possession and access to the premises is exclusive; otherwise there must be additional circumstances in evidence supporting the inference. Mills v. State, supra; Johnson v. State (1978), Ind.App., 376 N.E.2d 542; Martin v. State (1978), Ind.App., 372 N.E.2d 1194.

In the present case we find there was adequate evidence to show Hutcherson had a possessory interest in the premises. Since a number of people also had access to the heroin, possession of the premises alone does not raise an inference of knowledge. However, the evidence shows that Hutcherson was standing in the kitchen where the cigarette package containing the heroin was on the table in plain view. An album cover with what appeared to be heroin on it was in the kitchen sink with hot water running over it, also in plain view, when the police entered the kitchen. Considering in addition Hutcherson's flight and attempt to conceal himself in response to the warning cry of his girlfriend, we feel that the jury could reasonably infer that he knew of the presence and character of the heroin. Hutcherson relies on Bradley v. State (1972), 153 Ind.App. 421, 287 N.E.2d 759, for the proposition that flight alone is insufficient to sustain a conviction. We agree. See Keaton v. State (1978), Ind.App., 380 N.E.2d 587; Henderson v. State (1977), Ind.App.,364 N.E.2d 175. However, we cannot presume that the jury relied solely on the evidence of flight in finding Hutcherson guilty. Henderson v. State, supra. As discussed above, proof of constructive possession may be accomplished by showing either exclusive possession of the premises where a controlled substance is found, or non-exclusive possession and other circumstances supporting the inference of knowledge. Flight figures here as one of the "other circumstances," and may properly be considered in the context of the evidence as a whole. See Johnson v. State (1978), Ind.App., 376 N.E.2d 542; Martin v. State (1978), Ind.App., 372 N.E.2d 1194; and Ledcke v. State (1973), 260 Ind. 382, 296 N.E.2d 412.

II.

Hutcherson's conviction and sentence rest on his constructive possession of the heroin found in the cigarette package on the kitchen table. The police chemist testified that the total weight of the brown powder inside the cigarette package was 10.98 grams, and that the powder contained heroin. When asked how much heroin was in the powder, he responded that a quantitative test was not performed. On cross-examination, the chemist admitted that in his experience such mixtures could be as little as ten percent heroin, and that he knew the present specimen did not contain ten grams of pure heroin.

The statute in question, I.C. 1971, 35-24.1-4.1-6(b) (Burns Code Ed.), provides:

Possession of a controlled narcotic substance is a felony punishable by a determinate term of imprisonment of not less than five (5) years nor more than twenty (20) years and a fine not to exceed five thousand dollars ($5,000), if the amount of the controlled narcotic substance involved is an aggregate weight of ten (10) grams or more . . . .

The issue before us, then, is whether this statute requires that the State prove possession of more than ten grams of pure heroin or prove possession of more than ten grams of a mixture containing heroin, in order for the enhanced penalty to be imposed.

In construing the meaning of this statute, we are mindful that "(i)n cases of statutory interpretation this Court must give consideration to the consistency of all sections and to the logical meaning of the language. A statute which is specific and unambiguous must be held to its plain meaning." Lindley v. State (1978), Ind., 373 N.E.2d 886, 888.

We are controlled, therefore, by the express language of the statute itself and applicable rules of statutory construction, the objective of such rules being to determine and effect the intent of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225. However, in so doing, we are also required to prevent absurdity and hardship and to favor public convenience. State v. Rice (1956), 235 Ind. 423, 134 N.E.2d 219.

Loza v. State (1975), Ind., 325 N.E.2d 173, 176.

The State, relying on People...