Thomas v. State
| Decision Date | 22 January 1973 |
| Docket Number | No. 371S72,371S72 |
| Citation | 291 N.E.2d 557,260 Ind. 1 |
| Parties | Delores THOMAS, alias Turner, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Donald L. Fasig, Fasig, Goebel, Chavis & Wagner, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen. of Ind., Robert F. Colker, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit in two counts: Count 1, Possession of a narcotic drug; and Count 2, Possession with intent to sell. Trial before the court without a jury resulted in a finding of guilty of Count 1, only, and a sentence to the Indiana Women's Prison for not less than two years nor more than ten years.
The record discloses the following facts:
Donald Goeden, police officer of the city of Indianapolis assigned to narcotic investigations, testified that at approximately 10:00 P.M. on June 4, 1970, he went to 768 W. Walnut Street, Indianapolis, Indiana, with other officers and a warrant. Sgt. Mukes, one of the other officers, knocked on the door and a female voice was heard from inside the house asking, 'Who is it?' to which Sgt. Mukes replied, 'Sgt. Mukes, I have a warrant, open the door.' The officers then heard the sound of running feet, and Officer Brenton shouted that a window was being opened on the east side of the house. Sgt. Mukes then kicked open the door and both Goeden and Mukes entered. The two officers found the appellant and Pat Ford sitting at a small kitchen table. There were two open foil packages containing white powder on the table, one directly in front of the appellant. The warrant was read to the appellant. Goeden performed a preliminary test on the powder. The results of the test indicated that the powder contained a derivative of opium.
The foil packages were marked, put in an envelope and taken to the police crime laboratory where tests showed the powder to contain heroin.
Appellant combines in a single argument the following assignments of error:
1. The decision of the court is contrary to law.
2. The decision of the court is not sustained by sufficient evidence.
3. Irregularity in the proceedings of the court and abuse of discretion deprived the defendant of a fair trial.
It is appellant's argument that the evidence was insufficient to show possession, and that there was no proof of intent to unlawfully and feloniously possess the narcotic.
IC 1971, 35--24--1--20(c), Burns' Ind.Stat.Ann., 1972 Supp., § 10--3538(c) provides in part:
'(c) Any person who possesses or has under his control any narcotic drugs except as authorized under the laws of the United States or the state of Indiana, shall upon conviction be fined not more than one thousand dollars ($1,000) and be imprisoned for not less than two (2) years nor more than ten (10) years.'
Appellant argues that since the heroin was on a table at which both the appellant and Pat Ford were seated, it was, therefore, equally accessible to both, and that this fact does not prove possession of either. With this we do not agree.
When the sufficiency of evidence is raised on appeal, this Court will consider only that evidence most favorable to the State together with all logical and reasonable inferences which may be drawn therefrom. Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d 502, 18 Ind.Dec. 246. In order to prove possession of narcotics the State need not prove actual physical possession. Constructive possession is sufficient. 25 Am.Jur.2d Drugs, Narcotics, and Poisons § 21 (1966). In People v. Fox (1962), 24 Ill.2d 581, 182 N.E.2d 692, the Illinois Supreme Court defined 'constructive possession' to be an intent and capability to maintain control and dominion over a chattel. This definition was applied to the possession of drugs.
In the case at bar the appellant was in her own home, seated at a table on which were open packets of heroin. We hold that such a factual situation was sufficient for the trial court to determine that the appellant had the intent and capability to maintain control over the heroin, thus she was in 'constructive possession' of the heroin.
The fact that appellant was not alone in the kitchen does not alter the...
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...the admissibility of State's Exhibit No. 2 in light of the testimony given before this court on this date.3 Thomas v. State (1973), 260 Ind. 1, 5, 291 N.E.2d 557, 559; Weingart v. State (1973), Ind.App., 301 N.E.2d 222, 225; Corrao v. State, supra, 154 Ind.App. at 533, 290 N.E.2d at 487--48......
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Watt v. State, 2-1178A382
...defined constructive possession as "an intent and capability to maintain control and dominion" over the contraband. Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557, 558. Accord, Edwards v. State (1979), Ind.App., 385 N.E.2d 496; Hutcherson v. State (1978), Ind.App., 381 N.E.2d 877; Mills......
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