Lewis v. State

Decision Date05 September 1985
Docket NumberNo. 2-385-A-65,2-385-A-65
PartiesSaul LEWIS, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
CourtIndiana Appellate Court

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

Andrew P. Sheff, Bennett and Sheff, Indianapolis, for appellant.

BUCHANAN, C.J.

CASE SUMMARY

Defendant-appellant Saul Lewis (Lewis) appeals his trial court convictions of possession of heroin, a class D felony, 1 and resisting law enforcement, a class A misdemeanor, 2 claiming insufficiency of the evidence.

We affirm.

FACTS

The facts most favorable to the State reveal that on February 3, 1984, Indianapolis Police Department Detectives Barbara Schneider (Schneider), Daniel Harvey (Harvey), Robert Turner (Turner), and other officers executed a search warrant for an Indianapolis apartment. This second story apartment could only be reached by an outside stairway leading to the lone entrance. At trial, Schneider testified that the officers proceeded up the stairway, knocked and announced their presence, and then peered through a glass inset in the door. The apartment consisted of a kitchen and a bathroom located at the front with a bedroom located in the rear of the unit. The kitchen and bathroom were visible from the entry door, but only the door to the bedroom was visible as the officers looked through the glass inset. While peering through the glass inset, they observed William Tinsley (Tinsley) run from the bedroom across the kitchen area of the dwelling into the bathroom. At this juncture, the officers effected a forced entry and apprehended Tinsley as he attempted to flush a hypodermic syringe down the toilet. Upon entry, Turner proceeded down the short hallway to the bedroom in time to observe Lewis and Ron White (White), the apartment lessee, jump out of the second story window.

Turner advised Harvey of the escape, and Harvey gave chase. Harvey testified that Lewis, without a shirt or shoes despite the cold February weather, was hobbling down the street when Harvey saw him. Harvey identified himself as a law enforcement officer and ordered Lewis to stop. However, Lewis proceeded another thirty or forty yards, although having broken his leg in the jump, before Harvey apprehended him.

In the apartment bedroom, the officers found a warm "cooker" which is a device used to liquify drugs prior to injection, a hypodermic syringe containing a liquid, and a small folded aluminum packet on the nightstand in the bedroom. Outside, they found several small envelopes on the ground underneath the window from which Lewis and White jumped. Laboratory analysis indicated these items, with the exception of the hypodermic syringe fished from the toilet, tested positive for the presence of heroin.

The cause proceeded to trial before the court on August 2, 1984. During the trial, the contraband seized in the apartment was admitted into evidence as State's exhibits numbers one through five. The State also introduced State's exhibit number six, which contained the results of laboratory analysis on State's exhibits numbers one through five. The following exchange occurred:

"Mr. Palguda [Deputy Prosecutor]: State's Exhibit No. 6, for the record Your Honor, is a narcotics examination from the Indianapolis Police Department from Chris Walker, Forensic Chemist, showing the results of the tests performed on the State's Exhibits Numbers 1, 2, 3, 4, and 5 and I call the Court's attention that these are numbered by the numbers that are on the evidence markers which are lab items A1B, A2, A3A, A3B, and B2.

Judge: They are respectively labeled?

Mr. Palguda: Yes sir.

Judge: On the exhibit and on the sheet, State's Exhibit 6. Well, let me have a moment to look at them. (Pause) All right, you may proceed."

Record at 54, 58. State's exhibit number six was admitted by stipulation of the parties without objection. Lewis was found guilty and sentenced on August 23, 1984. Following the denial of his timely motion to correct error, this appeal ensued.

ISSUES

Lewis presents two issues for our consideration:

1. Was the evidence sufficient to sustain Lewis's conviction for possession of heroin?

2. Was the evidence sufficient to sustain Lewis's conviction for resisting law enforcement?

DECISION

ISSUE ONE--Was the evidence sufficient to sustain Lewis's conviction for possession of heroin?

PARTIES' CONTENTIONS--Lewis's attack upon the evidence is twofold; he contests the sufficiency of the evidence to establish constructive possession of the heroin by asserting that the evidence demonstrates, at most, his mere presence in the area where drugs were discovered. He also alleges insufficient evidence to determine the presence of a controlled substance by assailing the effect of the stipulated admission of a laboratory analysis report.

The State responds that the facts of the case constitute a sufficient basis for constructive possession and that the evidence is likewise adequate to establish the presence of heroin, a controlled substance.

CONCLUSION--The evidence is sufficient to sustain Lewis's conviction for possession of heroin.

Lewis's dual assault upon his conviction is more easily understood when each facet of his argument is considered separately. However, our employment of the well-known standard of review for questions of sufficiency of the evidence remains constant. See Davenport v. State (1984), Ind., 464 N.E.2d 1302, 1306-07. We turn first to the question of possession.

A. CONSTRUCTIVE POSSESSION

The evidence is sufficient to establish Lewis's constructive possession of heroin. As the parties concede that no evidence exists of actual possession, the focal point of our inquiry is the evidence which may lead to a finding of constructive possession. Constructive possession is defined as "an intent and capability to maintain control and dominion over" the illicit substance. Thomas v. State (1973), 260 Ind. 1, 4, 291 N.E.2d 557, 558; see also Davenport, supra; Snyder v. State (1984), Ind.App., 460 N.E.2d 522, trans. denied. Thus, the evidence must reveal that Lewis had both the capability and the intent to control the heroin found in the apartment.

The concept of the capability to exert control or dominion was explored in Martin v. State (1978), 175 Ind.App. 503, 507, 372 N.E.2d 1194, 1197:

"For constructive possession, the evidence need only establish the defendant's ability to control, that is, the ability to reduce the substance to his personal possession or to otherwise direct its disposition or use.

Control in this sense concerns the defendant's relation to the place where the substance is found: whether the defendant has the power, by way of legal authority or in a practical sense, to control the place where, or the item in which, the substance is found."

(Citations omitted) (emphasis supplied) (footnote omitted). Here, the evidence and the reasonable inferences which may be drawn therefrom establish that Lewis did have the practical ability to exercise dominion and control over the heroin. From the time the police officers began their execution of the warrant and peered through the glass inset, Lewis was present in the small bedroom where a hypodermic syringe filled with a liquid containing heroin was in plain view. Also, when the police officers entered the apartment they found a warm cooker, which indicates very recent usage to liquify drugs. The reasonable inference from this evidence is that Lewis had the practical ability to control the heroin, if he so chose. This is not a situation when the drugs were hidden from sight or physically in possession of only one person. See Crowder v. State (1980), Ind.App., 398 N.E.2d 1352 (constructive possession of marijuana on the part of the driver of an automobile could not be inferred when a plastic bag containing marijuana was visible in the pant's pocket of one of his passengers); Corrao v. State (1972), 154 Ind.App. 524, 290 N.E.2d 484 (passengers in backseat of car could not be found to have the capability to exercise dominion and control over the large quantity of marijuana found in the trunk of the car).

Likewise, the evidence is sufficient to establish Lewis's intent to exercise dominion and control over the heroin. The requisite intent may be inferred when the defendant is in exclusive possession of the premises; however, absent such exclusive possession, "the inference of intent must be supported by additional circumstances pointing to an accused's knowledge of the nature of the contraband and its presence." Parson v. State (1982), Ind.App., 431 N.E.2d 870, 872. The evidence showed that only White, the apartment lessee, had any possessory interest in the premises where the drug was found; thus, we must consider any additional circumstances which point to Lewis's knowledge of the heroin and its presence.

Among the factors which have been found to constitute additional circumstances bolstering a showing of intent for the purposes of constructive possession are a defendant's admission of ownership of the contraband, flight, proximity to contraband in plain view, and furtive conduct. See Crabtree v. State (1985), Ind.App., 479 N.E.2d 70; Snyder, supra; Parson, supra, at 873 (Shields, J. dissenting). However, a defendant's mere presence where drugs are located or his association with...

To continue reading

Request your trial
9 cases
  • Everroad v. State
    • United States
    • Indiana Appellate Court
    • April 15, 1991
    ...presence where the drugs were located is not alone sufficient to support a finding of constructive possession. See Lewis v. State (1985), Ind.App., 482 N.E.2d 487, 491. Thus, additional circumstances must exist which point to their knowledge of the contraband and its presence. See Bergfeld,......
  • Riding v. State
    • United States
    • Indiana Appellate Court
    • August 17, 1988
    ...and dominion over" the controlled substance. Thomas v. State (1973), 260 Ind. 1, 4, 291 N.E.2d 557, 558; see also Lewis v. State (1985), Ind.App., 482 N.E.2d 487. The capability to maintain control is the ability to reduce the controlled substance to a personal possession or to direct its d......
  • Young v. State
    • United States
    • Indiana Appellate Court
    • January 16, 1991
    ...State must prove that the defendant had the intent and ability to maintain control and dominion over the cocaine. Lewis v. State (1985) 2d Dist., Ind.App., 482 N.E.2d 487. Young argues that because there was a passenger in the car, the evidence was insufficient to establish that Young had c......
  • Enamorado v. State
    • United States
    • Indiana Supreme Court
    • March 2, 1989
    ...or association with another who actually possesses contraband is insufficient to show constructive possession. Lewis v. State (1985), Ind.App., 482 N.E.2d 487, 491. The jury could reasonably infer Sada's management or control over the cocaine from the agreement between Wheelington and the d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT