Jones v. State
| Decision Date | 01 June 1982 |
| Docket Number | No. 2-1281A421,2-1281A421 |
| Citation | 435 N.E.2d 616 |
| Parties | Larry B. JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Andrew P. Sheff, Bennett & Sheff, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Larry B. Jones (Jones) appeals from a conviction by the court of possession of more than thirty grams of marijuana, challenging the sufficiency of the evidence: He claims that only "pure" marijuana could be taken into account in determining whether he possessed more than thirty grams, the amount necessary to elevate the offense from a Class A misdemeanor to a Class D felony. Jones also assails the trial court's actions in limiting cross-examination and making a certain remark. 1
We affirm.
The evidence most favorable to the State discloses that on July 30, 1981, Indianapolis Police Officers Robert Morrison (Morrison) and Ralph Smith (Smith) responded to a complaint indicating that drugs were being sold in the alley east of the 2200 block of Pennsylvania Street. There, the officers saw Jones approach a car which had entered the alley, converse with the driver, produce a packet from a brown paper bag, and hand the packet to the driver in exchange for cash. This sequence was repeated four times. Suspecting that Jones was selling marijuana, Morrison and Smith advanced toward him. Upon seeing the officers' squad car, Jones dropped the brown paper bag. The officers apprehended Jones and retrieved the bag; inside were more than forty manila envelopes containing suspected marijuana.
Dirk Shaw (Shaw), a forensic chemist employed by the Indianapolis Police Department, offered expert testimony concerning the identity of the seized substance. He stated that he first subjected the contents of each manila envelope to microscopic examination; each packet appeared to contain pure marijuana. He then combined the contents of the various packets into one mass, which weighed 102.28 grams. Two qualitative tests-a thin layer chromatograph and a Duquenois-Levine test-were performed on a sample of the mass. These tests confirmed the presence of marijuana. It was Shaw's unequivocal opinion, based upon the tests he conducted, that the confiscated substance consisted of 102.28 grams of marijuana, "there (being) no other substance present." Record at 103.
Jones's attorney, in an attempt to "explor(e) exactly what a qualitative analysis means," asked the following hypothetical question of Shaw on cross-examination:
If I had ten pounds of sugar, ten pounds of salt, a pound of heroine (sic) and a pound of cocaine and mixed them up into a nice big bundle, a test of the nature of a Duquenois-Levine test for heroine (sic) would show what?
The trial court, after sustaining the State's objection to the question, made the following comment in response to argument by Jones's attorney: "He's (Shaw) answered the question between qualitative and quantitative, I don't see any reason to pursue this line of questioning but if you want to take up the Court's time then go ahead." Id. at 88. Jones's attorney made no objection to the remark. He proceeded to cross-examine Shaw at length concerning the qualitative tests performed on the confiscated substance.
From his conviction of possession of more than thirty grams of marijuana, Jones appeals.
Jones raises three issues: 2
1. Was the evidence sufficient to support his conviction of possession of more than thirty grams of marijuana?
2. Did the trial court err in refusing to permit Jones's attorney to cross-examine Shaw as to the hypothetical result of a qualitative test for heroin?
3. Did the court err in commenting, "I don't see any reason to pursue this line of questioning but if you want to take up the Court's time then go ahead," after sustaining the State's objection to the aforementioned hypothetical question?
ISSUE ONE-Was the evidence sufficient to support Jones's conviction of possession of more than thirty grams of marijuana?
PARTIES' CONTENTIONS-Emphasizing that Officers Morrison and Smith offered conflicting testimony as to the number of people they observed in the alley, Jones assails the evidence as being insufficient to establish that he, rather than a companion, was in possession of the brown paper bag. Jones also argues, based on this court's decision in Hutcherson v. State, (1978) Ind.App., 381 N.E.2d 877, that only the portion of the confiscated substance comprising "pure" marijuana could be taken into account in determining how much marijuana he possessed. Because no quantitative chemical tests were performed to ascertain the percentage of adulterants and diluents in the 102.28-gram mass, the evidence was insufficient as a matter of law to prove that Jones possessed more than thirty grams of marijuana, the amount necessary to elevate the offense of possession of marijuana from a Class A misdemeanor to a Class D felony.
The State responds that the evidence was sufficient as to the elements of possession and amount.
CONCLUSION-The evidence was sufficient to support Jones's conviction.
It is no secret that in reviewing the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232.
Jones's contention that the evidence was insufficient to establish the element of possession is baseless. Notwithstanding any disagreement as to the number of Jones's accomplices, both Morrison and Smith testified unwaveringly that it was Jones who held the brown paper bag containing packets of marijuana. That he dropped the bag to the ground upon seeing the squad car in no way negates the element of possession. As our supreme court said in Spright v. State, (1970) 254 Ind. 420, 429, 260 N.E.2d 770, 775, a similar appeal from a conviction for possession of marijuana: "The mere fact that appellant was attempting to divest himself of possession of the packet could not mean that he had in fact done so, so as to relieve himself of all responsibility therefor."
Also without merit is Jones's argument that the State failed to prove he possessed more than thirty grams of marijuana. He correctly reminds us that the various sections of the Controlled Substances Act (Act) which define dealing in a controlled substance refer to the substance in its "pure or adulterated" form. By contrast, the sections penalizing possession of a controlled substance omit the adjectives "pure or adulterated" in making reference to the substance. The sections pertaining to marijuana are representative. The dealing statute, IC 35-48-4-10, applies to one who
(1) knowingly or intentionally manufactures or delivers marijuana, hash oil, or hashish, pure or adulterated ; or
(2) possesses, with intent to manufacture or deliver, marijuana, hash oil, or hashish, pure or adulterated ....
(Emphasis supplied.)
The possession statute, IC 35-48-4-11, applies to one who
(1) knowingly or intentionally possesses marijuana, hash oil, or hashish;
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants ....
In Hutcherson v. State, (1978) Ind.App., 381 N.E.2d 877, trans. denied, an appeal from a conviction for possession of heroin, this court concluded that because the legislature excluded from the relevant possession statute the adjectives "pure or adulterated," only that portion of a confiscated mixture comprising pure heroin-not all of the mixture, however impure-could be considered in proving the amount of heroin in an accused's possession.
The court offered the following rationale for its decision:
There is a clear pattern of specificity throughout the sections penalizing unlawful dealing. Unlike the unlawful possession sections, each expressly defines unlawful dealing in a controlled substance as involving the substance in question in its pure or adulterated form. See, e.g. I.C. 1971, 35-24.1-4.1-1 (Burns Code Ed.) ("a person is guilty of unlawful dealing in a controlled narcotic substance if he: (1) knowingly...
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