Jones v. State, 2--774A180

• Decision Date: 25 March 1975
• Docket Number: No. 2--774A180,2--774A180
• Parties: Larry Oliver JONES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 828

324 N.E.2d 828

163 Ind.App. 454

Larry Oliver JONES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--774A180.

Court of Appeals of Indiana, Second District.

March 25, 1975.

[163 Ind.App 455]

Stephen B. Caplin, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Douglas W. Meyer, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

By information filed September 21, 1973, defendant-appellant (Jones) was charged with a violation of the 1935 Narcotics Act, to-wit: possession of heron. (The appropriate statute is now found at Ind.Ann.Stat. § 10--3561, IC 35--24.1--4--1).

Jones filed a motion to suppress with the trial court, and at the hearing subsequently held thereon the motion was denied. Further, Jones filed a Motion to Exclude Prejudicial Evidence, which we shall treat as a motion in limine. The motion was granted in part and denied in part.

A jury trial was held on January 8th through the 10th, 1974, and Jones was convicted as charged. The trial court entered judgment on the verdict and Jones was sentenced to imprisonment for an indeterminate period of two to ten years.

The facts most favorable to the State established that a detective for the Indianapolis Police Department received information from a confidential informant and such information was presented in an affidavit of probable cause in order to secure a search warrant. The informatioon contained in the affidavit was that the informant had observed various drugs at 726 North East Street, Apartment 33, in Indianapolis, within the last three days. A search warrant was issued on September 19, 1973, and the search was conducted September 20, 1973.

At least six police officers conducted the search of the named premises and there discovered at least two 'bindles' containing either a powdery substance or residue. In addition, various measuring spoons, strainers and injection equipment were found upon the premises, and specifically in the bedroom.

A preliminary field test indicated the possible presence of heroin and a subsequent laboratory examination verified the presence of that drug in the 'bindles' which were seized.

Jones' first argument is that the evidence was not sufficient to sustain the essential elements of the crime charged.

In order to convict Jones of possession of heroin it was necessary to show that Jones was (1) in possession of the alleged illegal substance, and (2) that the substance possessed was in fact heroin.

A conviction for possession of heroin may rest on evidence which shows either actual or constructive possession. McGowan v. State (1973), Ind.App., 296 N.E.2d 667. The doctrine of constructive possession was discussed in Phillips v. State (1974), Ind.App., 313 N.E.2d 101, wherein this court stated:

'Constructive possession may be proven by circumstantial evidence from which the care, management and control over the item in question may be inferred. . . .

. . . an accused must have actual knowledge of the presence of the item and of the item's character, this knowledge can be inferred from the fact that the item was found in a place under his dominion and control. Thomas v. State (1973), Ind., 291 N.E.2d 557; Feltes et al. v. People of Colorado (1972), 178 Colo. 409, 498 P.2d 1128.'

In the case at bar the evidence reveals that the rental receipt for the apartment was signed by Jones and there was an admission in the evidence that the apartment belonged to Jones. Further, Jones was seen emerging from the bedroom of the apartment, and various personal effects of Jones were found throughout the apartment and particularly in the bedroom where the drugs were seized. We consider this evidence sufficient to satisfy the elements of constructive possession as set out in Phillips, supra.

Jones further contends that the substance seized was not heroin. Jones argues that the substance seized in the apartment was not that which was eventually tested in the police laboratory and offered into evidence. Jones contends there was a fatal break in the chain of custody of the substance which was seized. Thus, Jones argues that the evidence should not have been admitted at trial and that all testimony with regard to the seized substance should have been excluded at trial.

The chain of custody rule as it exists in Indiana was recently discussed in the case of Mayes v. State (1974), Ind.App., 318 N.E.2d 811, 819, wherein this court stated:

'Our analysis of case authority leads us to conclude that while any substantial break in the chain of custody to the time of trial might require exclusion of the exhibit offered, not all relevant testimony concerning that article or substance need be excluded. Where as here, the chain is unbroken from the time of its seizure to the time the substance in question has been tested with conclusive results, testimony to that effect may be received.'

As the above language from Mayes indicates, where there is a break in the chain of custody from the time the substance is seized until it is offered into evidence, the evidence should be excluded. However, where there is substantial evidence to indicate an unbroken chain of custody from the time of the seizure until the time the substance is conclusively tested, testimony as to the results of those tests may be received into evidence.

In the case at bar Jones contends that one of the 'bindles' seized was improperly admitted because the substance contained therein was described by different witnesses as 'white' or 'brown'. Jones argues this discrepancy in color is sufficient to show a break in the chain of custody and that the substance was somehow tampered with. Jones also contends that the second 'bindle' seized at the apartment was improperly admitted because at trial it was found enclosed in a plastic bag while the policeman making the seizure testified that he did not place the item in such a container. We cannot agree with Jones' contentions. It is our opinion that the differing testimony as to the color of the substance was a fact to be determined in weighing the evidence. Further, the fact...