Mason v. State, 878S182
| Decision Date | 26 July 1979 |
| Docket Number | No. 878S182,878S182 |
| Parties | Ronald L. MASON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Rick D. Meils, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert C. Swain, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Mason was charged with and determined guilty by a jury of violating the Indiana Controlled Substances Act. Ind.Code §§ 35-24.1-4.1-1 through 35-24.1-4.1-16 (repealed effective October 1, 1977). In Count I he was charged with unlawful possession of less than 10 grams of heroin; in Count II he was charged with unlawful possession of 106 grams of marijuana; and in Count III he was charged with having been previously convicted of possession of less than 10 grams of heroin.
On April 14, 1977, at about 9:00 p. m. officers of the Indianapolis Police Department armed with a search warrant for Apartment 8 at 5340 East 21st Street in the City of Indianapolis, identified themselves while outside the hallway door to the apartment then forced their way in and observed appellant attempting to jump out a window. A quantity of marijuana and heroin was confiscated from the premises. Appellant and Doris Adams were present and both were charged growing out of the seizure of the contraband material.
On appeal appellant raises four issues: (1) whether the evidence of possession was sufficient; (2) whether State's exhibits including the contraband were properly admitted; (3) whether the affidavit and search warrant were properly admitted; and (4) whether the verdict on Count III was defective.
The evidence most favorable to the State supporting the conviction and in particular the element of possession may be summarized as follows:
Appellant's white Cadillac Eldorado had been observed by the police parked outside the building in which the apartment was located on several occasions prior to the date the apartment was searched and appellant was arrested there. D. J. Adams and her two children resided in the apartment, and appellant also stayed there overnight on occasion. When so staying overnight appellant occupied the bedroom with her. Appellant had clothing in the hall closet and used the shelves of the closet for personal items. Prescription medicines belonging to appellant were located in the medicine chest in the bathroom. Men's slacks, shirts and shoes were located in different spots throughout the apartment. Appellant would receive telephone calls at the apartment which in his absence would be written down and kept for him by D. J. Adams.
On January 14, 1977, at 9:00 p. m. the police officers knocked on the apartment door and identified themselves as police officers. At the time D. J. Adams was in her nightgown and appellant was in his undershirt and the two were watching television. When the door was not promptly opened the police forced themselves inside. Once inside the officers observed appellant attempting to crawl out a small bathroom window after he had apparently moved quickly into the bathroom. At trial Officer Meaker on cross examination stated in his belief that appellant was under the influence of narcotic drugs at the time. However, no recent injection sites were observed on appellant. There was also testimony presented that another male frequented the apartment, used appellant's car, used narcotic drugs, and had left the apartment minutes before the entry by police into the apartment.
The apartment was searched. A bottle of lactose, a bottle of quinine, a bottle cap which was burned on the end and which held a wet substance containing heroin, a green plastic funnel, balloons, a loaded revolver and $1250 were found in the hall closet in open view on a shelf. A small packet or bindle containing a mixture of lactose and quinine was found in the pocket of a man's jacket which was hanging in the hall closet. A purse was found on the floor in the open doorway of a bedroom closet. The sole contents of this purse was a sack containing heroin, needles, syringes, a bottle cap, and a quantity of marijuana. D. J. Adams testified at trial and stated that the marijuana belonged to her but that the heroin and drug paraphernalia did not.
Much of the foregoing summary was contradicted by the testimony of D. J. Adams and appellant. However in reviewing an allegation of insufficient evidence this Court does not weigh competing factual assertions nor resolve questions of credibility of witnesses, but looks to the evidence and reasonable inferences therefrom which support the verdict. Asher v. State, (1969) 253 Ind. 25, 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer the existence of each element of the offense beyond a reasonable doubt. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558; James v. State, (1976) 265 Ind. 384, 354 N.E.2d 236. Appellant contends that the evidence of possession was insufficient in that it did not show that appellant had control of the apartment. According to the argument none of the contraband was in plain view, part of the drugs was found in a purse belonging to D. J. Adams, and appellant did not appear to be "high" on drugs and therefore possession was not shown. The evidence need not be regarded in this manner. The jury could reasonably have accepted a construction of the evidence that D. J. Adams, appellant, and even their associates were in joint control and possession of the apartment and of its contents; that appellant in fact had knowledge that heroin and marijuana were present in the apartment in the hall closet and were kept in the bedroom; and that appellant had the intent and capability to maintain control over it. Ledcke v. State, (1973) 260 Ind. 382, 296 N.E.2d 412, Thomas v. State, (1973) 260 Ind. 1, 291 N.E.2d 557. Appellant used the apartment as his own. He kept his own personal prescription drugs in the bathroom. The hall closet contained his clothing. That closet had no door, but only a curtain over its entrance which was open, and the wet cap cooker and bottles of cutting material were there in open view. D. J. Adams served his interests by recording his telephone messages when he was not there. Their relationship was one of intimacy. She testified that the heroin and paraphernalia in her purse were not hers. He was under the influence of drugs at the time of the search, and attempted to flee upon hearing the officers announce their presence. The evidence of possession was sufficient.
Appellant contends that State's Exhibits 3 through 10 were erroneously admitted in evidence as they were not sufficiently connected with appellant. Exhibits...
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