Young v. State, 49A02-9007-CR-386
| Decision Date | 13 November 1990 |
| Docket Number | No. 49A02-9007-CR-386,49A02-9007-CR-386 |
| Citation | 562 N.E.2d 424 |
| Parties | Ozzie YOUNG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 1 |
| Court | Indiana Appellate Court |
S. Sargent Visher, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Ozzie Young appeals his convictions after a bench trial for Dealing in a Narcotic Drug (Heroin), a class B felony, and Possession of a Narcotic Drug (Heroin), a class D felony, for which he received concurrent enhanced sentences of twelve (12) and four (4) years respectively. The State concedes the trial court erred by convicting and sentencing Young for both dealing and possession of a narcotic drug under the rationale of Mason v. State (1989), Ind., 532 N.E.2d 1169, cert denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428. Therefore, we vacate the possession conviction. Young raises two issues, neither of which constitute reversible error.
The facts most favorable to the judgment indicate that on December 14, 1989, police officers executed a search warrant on a hotel room occupied by Dane Wynn and Ozzie Young. When the officers entered the room, Wynn was sitting at a table using a funnel to pour heroin into a balloon. On the table were three plastic bags containing a total of approximately five and six-tenths (5.6) grams of heroin, several measuring spoons, a bottle of Dormin, 2 a syringe containing heroin residue, and nineteen (19) tied balloons containing a total of approximately four and seven-tenths (4.7) grams of heroin. The hotel room was registered in Wynn's name and Wynn was in possession of a key to the hotel room.
Young was sitting in a chair against the wall by a dresser. On the dresser was an empty Dormin bottle containing twenty four (24) balloons filled with a total of approximately four and three-tenths (4.3) grams of heroin. In an open drawer of the dresser, also within Young's reach, were two (2) bottles of Dormin, a cooker cap containing heroin residue, a bottle of diphenhydramine, 3 and a billfold containing paraphernalia for packaging heroin.
Whether the evidence is sufficient?
Young admits the State proved that he was in a motel room where heroin was being packaged for sale. (Appellant's brief p. 11). However, he asserts the State failed to prove that he had the dominion and control over the heroin necessary to establish his constructive possession thereof to support his convictions. He argues the evidence would only support a conviction for visiting a common nuisance, a misdemeanor.
In reviewing the sufficiency of the evidence, the reviewing court neither weighs the evidence nor judges the credibility of the witnesses. Traxler v. State (1989), Ind., 538 N.E.2d 268. The reviewing court considers only the evidence favorable to the judgment, together with all reasonable inferences flowing therefrom, and if there is substantial evidence of probative value to support the judgment, it will not be disturbed. Id. The reviewing court looks only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Frias v. State (1989), Ind., 547 N.E.2d 809, cert. denied, --- U.S. ----, 110 S.Ct. 1954, 109 L.Ed.2d 316. Reversal is only appropriate when reasonable persons would be unable to form inferences as to each material element of the offense. Groves v. State (1985), Ind.App., 479 N.E.2d 626.
Constructive possession is defined as the capability and intent to maintain control and dominion over the contraband. Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557. If possession of the premises where the drugs are found is not exclusive knowledge of the presence of the substance and its character may not be reasonably inferred by the defendant's possession of or presence in the premises alone. Id. The inference of the defendant's knowledge of the drugs' presence and character must be supported by additional circumstances. Id. Additional circumstances from which such an inference may be drawn include 1) a manufacturing setting, 2) the proximity of the defendant to the drugs, 3) and whether the drugs are in plain view. Id.
Knowledge of the presence and nature of narcotics may be inferred in a manufacturing situation even where the accused is not a tenant of the premises. Ledcke v. State (1973), 260 Ind. 382, 296 N.E.2d 412. The presence of heroin "mix" in close proximity to heroin supports an inference closely akin to that permissible in a manufacturing or processing setting. Parson v. State (1982), Ind.App., 431 N.E.2d 870.
Young was apprehended in a heroin processing setting. At the time of the raid, Wynn was pouring heroin through a funnel into a balloon. Dormin and diphenhydramine, agents commonly used to cut heroin, were found in the hotel room. As noted earlier, Young admits the State proved he was in a motel room where heroin was being packaged for sale.
Additionally, Young was in close proximity to the heroin and heroin was in plain view. Wynn was pouring heroin through a funnel into a balloon. On the dresser near where Young was sitting was an empty Dormin bottle containing twenty four (24) balloons filled with heroin. In an open drawer of the dresser, were two (2) bottles of Dormin, a cooker cap containing heroin residue, a bottle of diphenhydramine, and a billfold containing paraphernalia for packaging heroin.
We hold the evidence is sufficient to support the inference that Young was aware of the presence and character of the heroin in question to support a finding of his constructive possession thereof. Therefore, we find no error.
Whether the trial court erred in enhancing Young's sentence?
Young asserts the trial court failed to provide a sufficient statement of reasons for enhancing his sentence. The trial court sentenced Young to twelve (12) years' imprisonment for dealing in heroin, a class B felony. Because the presumptive sentence for a Class B felony is 10 years, with not more than 10 years added for aggravating circumstances, the twelve (12) year sentence indicates the trial court enhanced Young's sentence by two (2) years. IND.CODE 35-50-2-5. During Young's sentencing hearing, the following colloquy took place:
Court: The pre-sentence report tells me that Detective Draeszig is going to be here today. I don't see him.
Mr. Nugent: I talked with Detective Draeszig this morning Your Honor on a different matter. He did not inform me that he would be coming today. I was not expecting him to be here.
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