Warthan v. State, 981S249

Docket NºNo. 981S249
Citation440 N.E.2d 657
Case DateOctober 13, 1982
CourtSupreme Court of Indiana

Page 657

440 N.E.2d 657
Rick J. WARTHAN, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 981S249.
Supreme Court of Indiana.
Oct. 13, 1982.

Page 658

James H. Voyles, Ober, Symmes, Cardwell, Voyles & Zahn, J. J. Paul, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) after trial by jury was convicted of Conspiracy to Deliver LSD, Ind.Code Sec. 35-41-5-2; 35-48-4-2(1) (Burns 1979) and Dealing in LSD, Ind.Code Sec. 35-48-4-2(2) (Burns 1979), and sentenced to twenty (20) years imprisonment and a fine of ten thousand dollars ($10,000) upon each count, sentences to run concurrently. This direct appeal presents the following issues:

(1) Whether the conspiracy conviction, assertedly based upon perjured testimony, violates fundamental due process. 1

(2) Whether the evidence is sufficient to sustain the convictions.

(3) Whether the trial court erred in sentencing the defendant.

* * *

* * *


Defendant contends that an undercover police officer perjured himself at the trial held March 2nd and 3rd, 1981. On February 23, 1981, the State furnished Defendant a two page statement made by Deputy Middleton of the Williams County, Ohio Sheriff's office and dated June 5, 1979.

At trial, Middleton related the details of the conspiracy. On June 3, 1979, one Ash, a co-defendant, telephoned Defendant and spoke with him for a few minutes about the availability and price of LSD. Ash gave the phone to Middleton who negotiated the transaction. They agreed to meet on Tuesday, June 5, 1979, at Defendant's residence in Elkhart, where Middleton would buy fifteen thousand (15,000) unit doses of LSD for eleven thousand dollars ($11,000). As we explain in Issue II, below, the purported sale was never completed.

At trial Ash related a similar version of the events except that he stated, on cross-examination, that Middleton, who was "standing right next to me" on June 3, 1979, when he, Ash, telephoned Defendant, never spoke directly to Defendant.

Middleton's pre-trial statement of June 5, 1979, contains the following:

" * * * We started winding up our investigation in Williams County and the decision was made to contact Ash and set up a deal with the supplier. I called Ash on Sunday June 3rd, 1979 and told him that I wanted from 15,000 to 30,000 hits of LSD if the man in Elkhart could get it for me. It was set up for him to call me at 1:00 PM Monday 6/4/79 if the deal was set up but he didn't call, me, he did call me at 6:00 PM and leave a message since I wasn't around. I went to Bryan, Ohio on Monday evening and met with Ash and he told me the deal was set up in Elkhart that the man was going to make a trip and that he was going to pick up 30,000 hits of LSD and that 15,000 would be for me and that he was going to keep the other 15,000 for himself. When I was talking to him he quoted the price of $11,000.00 for the 15,000 hits. Arrangements were made to leave for Elkhart at 5:00 PM Tuesday 6/5/79. * * *." R. at 200.

Although Defendant possessed Middleton's statement prior to trial, he did not attempt to impeach Middleton with the statement, which is not necessarily inconsistent

Page 659

with his in-court testimony. It is possible that Middleton spoke with both Ash and Defendant by telephone on June 3, 1979, though Ash's testimony was to the contrary. Consequently, Middleton's out of court statement, if true, tends to corroborate Ash's testimony, which corroboration might reflect unfavorably upon Middleton's in-court testimony in the eyes of the jury. However, Defendant's failure to attempt to bring the statement into evidence by way of impeaching Middleton places him in a situation similar to a defendant in possession of evidence, who fails to present the evidence at trial and who cannot later use such evidence as a basis for a new trial following an unfavorable verdict. Fleener v. State, (1980) Ind., 412 N.E.2d 778, 782; Riddle v. State, (1980) Ind., 402 N.E.2d 958, 961; DeShone v. State, (1934) 207 Ind. 380, 386, 193 N.E. 223, 225.

Additionally, at best the record contains a contradiction between two witnesses; it does not contain any evidence demonstrating that Middleton knew or believed either his pre-trial statement or his in-court testimony to be false. Ind.Code Sec. 35-44-2-1 (Burns 1979) (conduct giving rise to criminal liability for perjury); See Pendleton v. State, (1959) 239 Ind. 341, 344, 156 N.E.2d 782, 783. We find no merit in Defendant's contention.


Defendant next challenges the sufficiency of the evidence to sustain either conviction.

With respect to Count I, the conspiracy conviction, he notes the perjury of Middleton and asks us to consider its effect upon the rest of his testimony. We have found no perjury, and there is no other basis presented for the challenge to the conspiracy conviction. See White v. State, (1981) Ind., 425 N.E.2d 95, 97; Fleener v. State, supra.

With respect to the Dealing conviction (Possession with Intent to Sell), Defendant contends that the element of possession of LSD was not proven.

The evidence most favorable to the State reveals that after the agreement was reached, Ash and Defendant went to the chosen meeting spot, a restaurant parking lot, in an automobile. Middleton entered the back seat and the following occurred:

"A. I asked Mr. Warthan and Mr. Ash if they had the LSD. Mr. Ash looked at Mr. Warthan and said, 'do we?' Mr. Warthan stated, 'yes, we have it.' Then they asked me if I had the money, and I stated, 'yes, I have the money.' I asked Mr. Ash if the LSD was the green blotter type that we had discussed previously and Mr. Warthan stated that it was the same green blotter type that we had discussed. I then asked Mr. Warthan if he had it at his house or if he had it with him and he said it's here and then patted a small, approximately eight by ten pouch, leather brief case type thing and said it's here, and at that time, I seen some green paper, which looked to my knowledge and experience, to be the same type that the LSD would be printed upon; approximately sixteenth of an inch by three inches was sticking out of the corner of the briefcase." R. at 245.

The transaction was never completed. The principals drove around Elkhart making several stops and telephone calls. At the last stop Ash suggested that Middleton call his "money man" to pick them up at McDonald's. Middleton agreed and went to make the call. When he returned, Defendant and Ash were gone, and none of the alleged contraband was recovered for chemical analysis.

Even though contraband is not recovered, the State may prove Defendant's possession of LSD by circumstantial evidence, e.g. Pettit v. State, (1972) 258 Ind. 409, 281 N.E.2d 807; Locklayer v. State, (1974) 162 Ind.App. 64, 75, 317 N.E.2d 868, 874; however, Middleton's testimony (quoted above), the only evidence upon the element of possession, is not probative evidence from which the element may be found.

Page 660

In Slettvet v. State, (1972) 258 Ind. 312, 315, 280 N.E.2d 806, 808, a unanimous Court reversed a conviction for possession of LSD stating, "LSD is a colorless, tasteless, and odorless substance (see 22 A.L.R.3d 1326 n. 1) so that none of these characteristics can be a basis for identifying the substance." A lay witness had testified about the defendant's behavior after he consumed pills referred to by hearsay evidence as "purple haze acid." The witness had not actually seen the Defendant, her husband, take the pills. We stated that, "Unlike drunkenness caused by alcohol, as to which a layman can form an opinion, we cannot say that the reactions to LSD are within the knowledge of the general public. It can be nothing more than conjecture by the jury that the actions of the witness' husband were the result of consumption of a dangerous drug." Id.

Given the physical characteristics of LSD, it would be impossible, even for an expert witness, to conclude that the green paper he saw contained a colorless, tasteless, and odorless substance. In addition Middleton provided no testimony as to what distinguished the small portion of green blotter paper that he saw from any other blotter paper. See Copeland v. State, (1982) Ind.App., 430 N.E.2d 393, 396. Under the circumstances, Middleton's conclusion that LSD was on the green paper could only have been drawn from Defendant's statements. These statements may be treated as circumstantial admissions. "Extra judicial admissions of a defendant will not be admitted in[to] evidence and a conviction will not be upheld until and unless the corpus delicti has been established by clear probative proof independent of the admissions." Walker v. State, (1968) 249 Ind. 551, 559, 233 N.E.2d 483, 488 (cases cited therein). Middleton's testimony, revealing Defendant's admissions, is the only evidence of the corpus delicti of the offense, Dealing in a Controlled Substance, LSD, Ind.Code Sec. 35-48-4-2(2) (Burns 1979). This statute penalizes the actual possession of contraband. Under the decisions of Indiana courts, a Defendant's extrajudicial statement of possession of contraband, without more, does not establish the corpus delicti, i.e., that he actually possessed the contraband. The reason for this seemingly enigmatic rule is that the Legislature intended to punish the act of possession of contraband, not the act of making an extrajudical statement acknowledging such possession. See Pryor v. State, (1972) 260 Ind. 408, 413, 296 N.E.2d 125, 127. An examination of the precedents illustrates the point.

In Thorne v. State, (1973) 260 Ind. 70, 72-73, 292 N.E.2d 607, 609 we affirmed a conviction for possession of LSD stating:


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