McConnell v. State

• Decision Date: 28 June 1989
• Docket Number: No. 84A01-8901-CR-29,84A01-8901-CR-29
• Parties: Willie J. McCONNELL, Jr. Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 100

540 N.E.2d 100

Willie J. McCONNELL, Jr. Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 84A01-8901-CR-29.

Court of Appeals of Indiana,

First District.

June 28, 1989.

James W. Boswell, Vigo County Public Defender, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Appellant-defendant Willie McConnell, Jr., appeals from his convictions for operating a vehicle while suspended, a class A misdemeanor, and possession of paraphernalia, a class A misdemeanor. He was sentenced to one year on each conviction, the sentences to be served consecutively.

We affirm.

On March 14, 1988, Albert Loftson reported to police the theft of a rental car a few days earlier. Police discovered the vehicle had been involved in a fatal accident in Illinois. The driver had been Laura McCloud. Laura had been with Loftson and McConnell when Loftson rented the Mercury Lynx. Laura stated that after Loftson rented the Lynx, McConnell drove Loftson's Camaro a block before stopping and exchanging places with Loftson. McConnell then drove away with Laura and a friend in the Lynx.

Following Laura's accident in the Lynx, she reported to police that McConnell had driven a vehicle while his license was suspended. Relying on her affidavit, police obtained an arrest warrant and took McConnell into custody. When McConnell emptied his pockets at the book-in desk, police recovered a small, green and silver smoking pipe. The pipe had a small bowl with a screen in it. The bowl contained a small amount of residue. After a bench trial, McConnell was found guilty of driving while suspended and possession of paraphernalia.

McConnell presents three issues:

I. Whether the uncorroborated testimony of a private citizen may support an arrest warrant and a conviction for driving while suspended?

II. Whether there was sufficient evidence to support McConnell's possession of paraphernalia conviction?

III. Whether the trial court erred in sentencing McConnell to two one-year sentences to be served consecutively?

I.

As McConnell seems to state his argument, police could not have arrested McConnell for a misdemeanor not committed in their presence, on Laura McCloud's implication of McConnell. He further maintains that Laura's uncorroborated testimony could not sustain his conviction.

McConnell has not supplied us with any authority for his supposition that police may not arrest for a misdemeanor on a citizen's report. IND. CODE 35-33-1-1(a) authorizes an officer to make an arrest when the officer has a warrant commanding that the person be arrested. No warrant for arrest may be issued until an affidavit is filed with the judge, stating that the person to be arrested committed the offense. I.C. 35-33-5-2. An offense includes a misdemeanor. I.C. 35-41-1-2. Ordinarily, a warrantless arrest for a misdemeanor may only be made when the misdemeanor was committed in the officer's presence, Garrett v. City of Bloomington (1985), Ind.App., 478 N.E.2d 89, implying that a misdemeanor arrest may be made on a warrant supported by affidavit. Accordingly, McConnell has not persuaded us that there was any irregularity in McConnell's arrest. See also Rector v. State (1971), 256 Ind. 634, 271 N.E.2d 452. Even if the arrest was improper, an illegal arrest has no bearing on a subsequent conviction. Id.

McConnell's argument on the sufficiency of the evidence merely invites us to judge Laura McCloud's credibility, an invitation we always decline. Laura stated without equivocation that she saw McConnell drive two vehicles on March 10, 1988, and the State submitted documentation that McConnell's license was suspended on that day. Under our standard of review, sufficient evidence was presented to support McConnell's conviction.

II.

Under McConnell's next assignment of error, he challenges sufficiency of the evidence on his paraphernalia conviction. McConnell was charged with possession of paraphernalia as a class A misdemeanor. He may be convicted of that offense if the State proved he "possessed a raw material, instrument, device, or other object that he intended to use in connection with marijuana, hash oil, or hashish." I.C. 35-48-4-8.3.

McConnell does not dispute that he possessed the object in question, a small, green and silver smoking pipe. Further, there was evidence that the pipe was similar to pipes in which marijuana is commonly smoked, given its size and the presence of a screen to filter seeds and stems. McConnell alleges that the evidence on the question of his specific intent was deficient. The State must prove the defendant's intent to use an instrument for illegal purposes beyond a reasonable doubt. Eskridge v. State (1972), 258 Ind. 363, 281 N.E.2d 490. Intent to use an instrument for illegal drug use may be inferred from circumstantial evidence, such as from evidence of previous convictions for drug use, VonHaugher v. State (1971), 255 Ind. 666, 266 N.E.2d 197, and from former drug use and the presence of needle marks on defendant's arms, Eskridge, supra; Stevens v. State (1971), 257 Ind. 386, 275 N.E.2d 12; Cooper v. State (1976), 171 Ind.App. 350, 357 N.E.2d 260. In the above-cited cases, the defendants had possessed various instruments for injecting dangerous drugs, including needles, syringes and cookers.

However, evidence of possession of an eyedropper, needle and a burned bottle cap, coupled with evidence of flight and attempted concealment, are not sufficient to show intent to unlawfully administer narcotics. Bradley v. State (1972), 153 Ind.App. 421, 287 N.E.2d 759.

It is evident that intent may not be inferred merely from proof that the instruments possessed were normally used or adapted for use with illegal drugs. Expert testimony describing an "outfit" which consisted of a needle, eyedropper and bottle cap, relating that it is commonly seen in the possession of narcotics users, and detailing how it is so used, went only to show the instruments were adapted to drug use, which was a necessary element under the statute. Taylor v. State (1971), 256 Ind. 170, 267 N.E.2d 383. Although the evidence showed defendant was in possession of adapted instruments, it was insufficient to show intent absent evidence of previous drug use. Id., 267 N.E.2d at 385. Implicitly, the court recognized that the evidence of the character of the instruments, in itself, could not sustain the element of intent.

Accordingly, the State had to prove facts which would support an inference that McConnell intended to use the pipe in connection with marijuana. There was expert testimony from police that the confiscated pipe was like those commonly used to smoke marijuana. It contained a screen used to filter seeds and stems. Its small size enabled the user to easily secrete the pipe. However, evidence of the pipe's fitness for smoking marijuana could not support the intent element. Also, the State did not introduce any evidence that McConnell was a marijuana user or had previous drug convictions.

The only evidence which the State could have relied upon to establish that McConnell intended to use the pipe in connection with marijuana was the identification of residue in the pipe.

We have not discovered an Indiana case in which the intent element in a possession of paraphernalia case was supported by presence of contraband. ¹ However, presence of marijuana would be strongly probative of defendant's intent to use an instrument in connection with marijuana. Therefore, if there was sufficient evidence to show that the pipe contained marijuana, then the evidence was sufficient on the intent element.

The expert admitted that the small amount of residue in the bowl was not sufficient to induce a positive reaction to the field test. Officer John Lewis's testimony concerning identification of the residue was as follows:

Q. And you did find residue of some kind in that pipe?

A. Yes, I did. The residue that I found in this pipe appears to have been a substance that burned very hot because the residue is very black--and marijuana does burn very hot.

Q. From the little bit that you were able to scrape out--based on your experience--what...