Lead Opinion
Appellant-defendant Willie McConnell, Jr., appeals from his convictions for operating a vehicle while suspended, a class A misdemeanor, and possession of paraphernalia, a class A misdemeanor. He was sentenced to one year on eаch conviction, the sentences to be served consecutively.
We affirm.
On March 14, 1988, Albert Loftson reported to police the theft of a rental car a few days earlier. Police discovered the vehicle had been involved in a fatal accident in Illinois. The driver hаd been Laura MeCloud. Laura had been with Loftson and McConnell when Loftson rented the Mercury Lynx. Laura stated that after Loftson rented the Lynx, McConnell drove Loftson's Camaro a block before stopping and exchanging places with Loftson. McConnell then drove away with Laura and a friend in the Lynx.
Following Laura's accident in the Lynx, she reported to police that McConnell had driven a vehicle while his license was suspended. Relying on her affidavit, police obtained an arrest warrant and took McConnell into custody. When McConnell emptied his pockets at the book-in desk, police recovered a small, green and silver smoking pipe. The pipe had a small bowl with a screen in it. The bowl contained a small amount of residue. After a bench trial, McConnell was found guilty of driving while suspended and possеssion of paraphernalia.
McConnell presents three issues:
I. Whether the uncorroborated testimony of a private citizen may support an arrest warrant and a conviction for driving while suspended?
II. Whether there was sufficient evidence to support McConnell's possession of paraрhernalia conviction?
III. Whether the trial court erred in sentencing McConnell to two one-year sentences to be served consecutively?
I.
As McConnell seems to state his argument, police could not have arrested McConnell for a misdemeanor not cоmmitted in their presence, on Laura McCloud's implication of McConnell. He further maintains that Laura's uncorroborated testimony could not sustain his conviction.
McConnell has not supplied us with any authority for his supposition that police may not arrest for a misdemeanor on a citizen's report. IND. CODE 35-83-1-1(a) authorizes an officer to make an arrest when the officer has a warrant command
McConnell's argument on the sufficienсy of the evidence merely invites us to judge Laura McCloud's credibility, an invitation we always decline. Laura stated without equivocation that she saw McConnell drive two vehicles on March 10, 1988, and the State submitted documentation that McConnell's license was suspended on that day. Under our standard of review, sufficient evidence was presented to support McConnell's conviction.
IL.
Under McConnell's next assignment of error, he challenges sufficiency of the evidence on his paraphernalia conviction. McConnell was charged with pоssession of paraphernalia as a class A misdemeanor. He may be convicted of that offense if the State proved he "possessed a raw material, instrument, device, or other object that he intended to use in connection with marijuana, hash oil, or hаshish." I.C. 35-48-4-8.3.
McConnell does not dispute that he possessed the object in question, a small, green and silver smoking pipe. Further, there was evidence that the pipe was similar to pipes in which marijuana is commonly smoked, given its size and the presence of a screen to filter seeds and stems. McConnell alleges that the evidence on the question of his specific intent was deficient. The State must prove the defendant's intent to use an instrument for illegal purposes beyond a reasonable doubt. Eskridge v. State (1972),
However, evidence of possession of an eyedropper, needle and a burned bottle cap, coupled with evidence of flight and attempted concealment, are not sufficient to show intent to unlawfully administer nar-cotiecs. Bradley v. State (1972),
It is evident that intent may not be inferred merely from proof that the instruments possessed were normally used or adapted for use with illegal drugs. Expert testimony describing an "outfit" which consisted of a needle, eyedropper and bottle cap, relating that it is commonly seen in the possession of narcotics users, and detailing how it is so used, went only to show the instruments were adapted to drug use, which was a necessary element under the statute. Taylor v. State (1971),
Aсcordingly, the State had to prove facts which would support an inference that McConnell intended to use the pipe in connection with marijuana. There was expert testimony from police that the confiscated pipe was like those commonly used to
The only evidence which the State could have relied upon to establish that MeCon-nell intended to use the pipe in connection with marijuana was the identification of residue in the pipe.
We have not discovered an Indiana case in which the intent element in a possession of paraphernalia case was supported by presence of contraband.
The expert admitted that the small amount of residuе in the bowl was not sufficient to induce a positive reaction to the field test. Officer John Lewis's testimony concerning identification of the residue was as follows:
Q. And you did find residue of some kind in that pipe?
A. Yes, I did. The residue that I found in this pipe appears to have been a substance that burned very hot because the residue is very black-and marijuana does burn very hot.
Q. From the little bit that you were able to serape out-based on your experience-what did you think the substance was?
A. The substance that I scraped out appears to be the same type substance that I havе removed from other pipes that-in a field test-did show to be marijuana. Same color, same consistency.
Record at 98.
When the drugs themselves are not placed into evidence and there is no expert testimony based on a chemical analysis, then there must be testimony of sоmeone sufficiently experienced with the drug indicating that the substance was indeed a dangerous drug. Slettvet v. State (1972),
The Slettvet court relied in part upon a California case in which the court found that evidence of an experienced police officer who had identified the substance as marijuana from its odor and apрearance was sufficient to support defendant's possession conviction. People v. Marinos (1968),
Officer Lewis was qualified as an expert experienced in conducting tests on drugs and familiar with marijuana. Conclusive results from a field test were not available becаuse the sample was too small. Like the officer in Marinos, Officer Lewis testified that the residue was similar in color and consistency to material that had tested as marijuana. He also drew his
III.
McConnell's last assignment of error is that his sentence was manifestly unreasonable. The trial court noted McConnell's previous convictions for burglary, possession of marijuana, driving while suspended and driving while intoxicated. The court determined that there were nо cireumstanc-es in mitigation of the sentence, and imposed the presumptive sentence of one year on each of the class A misdemeanor offenses, to be served consecutively.
The court may consider defendant's prior eriminal record as а factor favoring imposition of consecutive sentences. Forrester v. State (1982), Ind.,
A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed. Id. In view of McConnell's prior convictions, we do not find his two-year sentence manifestly unreasonable.
Judgment affirmed.
Notes
. In Cooper v. State, supra, Cooper's conviction of possession of adapted instruments was sustained on the intent element by evidence of his past narcotics use and presence of needle marks. Yet, the facts showed that Cooper was in possession of injection equipment and a cooker cap containing heroin.
Dissenting Opinion
dissenting.
I dissent and vote to reverse McConnell's conviction of possession of paraphernalia because there is insufficient evidence that at the time he possessed the smoking pipe he intended to use it in connection with marijuana.
I agree with the majority opinion to the extent it holds McConnell's simultaneous possession of marijuana and the smoking pipe would be probative evidence of McConnell's intent to use the pipe to introduce marijuana into his body. However, I depart from the conclusion in the majority opinion that the evidence here is sufficient for a reasоnable fact finder to conclude beyond a reasonable doubt that McConnell possessed marijuana in the form of residue in the smoking pipe.
The testimony of Officer Lewis quoted in the majority opinion reasonably supports only the conclusion that the residue in the smoking pipe is consistent with it being marijuana and not that it is marijuana. This fact is even more apparent when additional testimony elicited from Officer Lewis on cross-examination is considered:
Q. Officer Lewis, you don't know whether or not the residue is marijuana or not, do you?
A. No, I can't say that, sir.
Record at 98.
Accоrdingly, because intent may not be inferred merely from proof that the smoking pipe in McConnell's possession is normally used or adapted for use in smoking marijuana, I vote to reverse his conviction for possession of paraphernalia. I vote to affirm his conviction for operating a vehicle while suspended.