Rose v. State, 571S136

• Decision Date: 25 April 1972
• Docket Number: No. 571S136,571S136
• Citation: 281 N.E.2d 486,258 Ind. 377
• Parties: James ROSE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 486

281 N.E.2d 486

258 Ind. 377

James ROSE, Appellant, v. STATE of Indiana, Appellee.

No. 571S136.

Supreme Court of Indiana.

April 25, 1972.

Gil I. Berry, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by James Rose from a judgment in the Jasper Circuit Court convicting him of the crime of unlawful possession of marijuana. Appellant waived a jury trial, and the cause was tried on November 27, 1970 before the Honorable Robert B. Wright, Judge. Upon conviction, appellant was sentenced to the Indiana State Farm for a period of ninety (90) days.

On appeal, the appellant makes the following allegations of error:

1. That the evidence is insufficient to sustain the conviction.

2. That the finding of the court is contrary to law.

3. That certain of the State's exhibits were erroneously admitted into evidence.

Appellant's first and second contentions are similar in nature and will be considered together. When reviewing for the sufficiency of the evidence, this Court will neither weigh the evidence nor determine the credibility of witnesses. Only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom will be considered on appeal. If there is substantial evidence of probative value sufficient to establish every element of the crime beyond a reasonable doubt, the judgment of the trial court will not be disturbed. See, Valentine v. State (1971), Ind., 273 N.E.2d 543; Thomas v. State (1971), Ind., 268 N.E.2d 609; Tibbs v. State (1970), Ind., 263 N.E.2d 728.

Viewed in the light most favorable to the State the record reveals that on the morning of September 14, 1969, the appellant and his Cousin, Sonnie Hammond, were observed walking along a ditch in a bean field in Newton County. Robert Prohosky, the owner of the farm, immediately telephoned the Sheriff in Kentland, Indiana, as he was aware of the fact that marijuana frequently grew wild in various areas about his farm. Upon receiving the call, the Sheriff, Charles P. Mullen, proceeded to drive to Prohosky's home. Prohosky then accompanied the Sheriff, directing him to the place where he had earlier observed the two boys. As Prohosky and Mullen approached the field, the appellant and his cousin were observed sitting upon some sacks in the field 'stripping' marijuana. Immediately in front of the two boys was what appeared to be a freshly harvested pile of marijuana. Sheriff Mullen testified that he drove his police car to within thirty or forty yards from the boys before they become aware of his presence. The pair immediately fled, but they returned when the Sheriff fired his pistol into the air and ordered them to halt. In the immediate area, in addition to the pile of marijuana, the Sheriff found two machetes and some plastic bags. Appellant and his cousin were placed under arrest and taken to jail. Samples of the vegetation were sent to the Indiana State Police Laboratory for chemical analysis, and the test results indicated that the substance was, in fact, marijuana.

It is contended that there is a total lack of evidence sufficient to establish that the appellant was in actual or constructive possession of marijuana. We do not agree.

Sheriff Mullen testified that he saw the appellant 'stripping' the marijuana as he approached in his police car. Sheriff Mullen positively identified the substance held by the appellant as marijuana, and his expertise in this area was unchallenged by appellant at trial. This testimony is sufficient to establish actual possession. Furthermore, we are of the opinion that the circumstantial evidence sufficiently establishes that the appellant was in possession of the pile of marijuana which was found at the scene of the arrest and which was introduced into evidence at trial. In Massiate v. State (1963, Tex.Cr.App.), 365 S.W.2d 802, possession was defined as the 'care, management and control' over the item in question. In Massiate, the defendant had been arrested after having been observed watering marijuana plants which were growing on land owned by the county. The defendnat admitted that he had planted the marijuana some two months before. On appeal, his conviction for possession of marijuana was sustained, the court being satisfied that the defendant had exercised the necessary 'care, management and control' over the marijuana to support a finding of possession. In the case at bar, it is not unreasonable to infer that the appellant and his cuson, using the two machetes, had cut the marijuana, and that they were interrupted by the Sheriff before they could place it in the plastic bags and leave the field. These facts, if inferred, are sufficient to sustain a finding that the appellant exercised the necessary care, management and control over the marijuana to constitute possession. Therefore, this Court concludes that the evidence is sufficient to sustain the conviction for illegal possession of marijuana.

Appellant lastly contends that State's Exhibits 2, 3, 4 and 5 were erroneously admitted into evidence. Exhibits 2 and 3 were plastic bags containing the marijuana found at the scene of the arrest. Exhibits 4 and 5 were envelopes containing samples of the contents of Exhibits 2 and 3 which were sent to the police laboratory for chemical analysis. Counsel for appellant argues that the contents of Exhibits 2 and 3 were not sufficiently connected with the appellant, and theefore, he contends, the Exhibits were inadmissible. Appellant also asserts that the countents of Exhibits 2 and 3 were not proven to have been unmixed with other containers of marijuana during storage.

In regard to appellant's first argument, it is well established law that a foundation must be laid...