Vasquez v. State
| Decision Date | 02 February 2001 |
| Docket Number | No. 49S02-0012-CR-740.,49S02-0012-CR-740. |
| Citation | 741 N.E.2d 1214 |
| Parties | Jose VASQUEZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
William F. Thoms, Jr. Indianapolis, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Yvonne M. Carter, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
ON PETITION FOR TRANSFER
We hold that testimony as to the nature of a compound may be based on a witness' experience with it if the circumstances support the conclusion that the witness' identification is reliable.
On October 4, 1999, two Indianapolis police officers, Jeffrey Kelley and Steve Knight, responded to a report of a burglary at an apartment at 55 South Linwood. Jose Vasquez answered the door and appeared to be disoriented, non-responsive, off-balance, and thick-tongued. The officers smelled what they believed to be a toluene-type substance. A search of the residence revealed a clear liquid substance in a bottle near a rag soaked with the substance. Vasquez was arrested and charged with glue sniffing. At a bench trial, both officers testified that they believed the substance in the bottle was toluene. Vasquez was found guilty of glue sniffing.1
Vasquez appealed and the Court of Appeals reversed, holding that the evidence was insufficient to support Vasquez's conviction because it was not established that the substance in the bottle was toluene. Vasquez v. State, 735 N.E.2d 1207, 1208 (Ind.Ct.App.2000). Judge Darden, in dissent, found that the officers' testimony was sufficient to affirm the conviction. Id. at 1209.
Vasquez claims that there is insufficient evidence to support his conviction for glue sniffing because the State did not prove either (1) that the substance was toluene, or (2) that Vasquez inhaled with the intent to cause intoxication. Specifically, he contends that identifying the substance based solely on the testimony of two police officers, neither of whom was an expert, does not establish beyond a reasonable doubt that the substance was toluene.
Our standard for reviewing a claim of sufficiency of the evidence is well settled. We do not reweigh the evidence or judge the credibility of witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind.1996). We look to the evidence and the reasonable inferences therefrom that support the verdict and will affirm a conviction if evidence of probative value exists from which a jury or judge could find the defendant guilty beyond a reasonable doubt. Id. "[A]n inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility." Shutt v. State, 233 Ind. 169, 174, 117 N.E.2d 892, 894 (1954). However, the testimony of an observer, skilled in an art or possessing knowledge beyond the ken of the average juror may be nothing more than a report of what the witness observed, and therefore, admissible as lay testimony. See Jervis v. State, 679 N.E.2d 875, 881 (Ind.1997)
(). Under Indiana Evidence Rule 701, a lay witness may testify to "those opinions or inferences which are rationally based on the perception of the witness."
The crime of glue sniffing requires that: (1) a person inhales or ingests, (2) the fumes of model glue or a substance that contains toluene, (3) with the intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses. Ind. Code § 35-46-6-2 (1998). The evidence showed that Kelley and Knight entered the apartment and found a bottle of a clear liquid and a rag soaked in the same substance. Vasquez displayed the behavior of a person under the influence of toluene. "[T]he identity of a drug can be proven by circumstantial evidence." Clifton v. State, 499 N.E.2d 256, 258 (Ind.1986). The same is true of toluene. The opinion of someone sufficiently experienced with the drug may establish its identity, as may other circumstantial evidence. Id. Although chemical analysis is one way, and perhaps the best way, to establish the identity of a compound, persons experienced in the area may be able to identify cigarette smoke, marijuana, and even toluene. This is true even if every citizen may not be up to that task.
In this case, there was both testimony of those familiar with toluene and other...
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