Gеorge O‘GRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 4-184A24
Court of Appeals of Indiana, Fourth District
July 22, 1985
Rehearing Denied Aug. 23, 1985
115
Linley E. Pearson, Atty. Gen. of Ind., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
MILLER, Presiding Judge.
George O‘Grady supplicates this court to grant his appeal from a jury verdict finding him guilty of possession with intent to deal in a Schedule I controlled substance, heroin (
FACTS
On August 11, 1983, Officers James Wurz and Daniel Harvey, narcotics investigators for the Indianapolis Police Department, received a tip from a known infor
“[State]: Did you find any evidence of heroin used inside of that automobile?
[WURZ]: Use? No sir I did not.
Q. What—basing this upon your experience, again, are the ways or way that heroin is ingested by the user?.
A. It is snorted through the nose or injected into the vein.
Q. Alright, and that is—obviously that injection is by the syringe method?
A. Yes.
Q. And you did not find any syringes in this automobile?
A. No sir I did not.
Q. Did you find any on the Defendant‘s person?
A. No I did not.
Q. Did you notice any visible needle marks on the Defendant?
A. No I did not.”
Record, p. 93.
At trial, a police chemist identified the 2.0790 grams of powdery substance as containing 0.0449 grams of heroin. In addition, Officer Wurz testified that one method of packaging heroin for sale was in tin foil packets, or “bindles,” usually sold at $10 apiece, a 2% strength (as here) indicating perhaps a new dealer trying to enter the Indianapolis market.
“Q. How is heroin normally sold Detective?
A. Well, in Indianapolis it is sold by a little capsule, a balloon, and usually in tin foil.
Q. Alright, I am sorry, but you will have to speak uр a little bit.
A. The most common method in August was a capsule, a clear capsule, a gelatin capsule. Towards the end of August it changed—or the beginning of August, rather it changed to tin foil packet, and there are also balloons they sell it in.
Q. Alright, and at the local level again, in Indianapolis, is there any norm, any normal amount that a user of heroin normally buys at one time?
A. Packets like this, I would say two—three at the most.
Q. Alright, аnd in August, on or about August 11, 1983, to your knowledge was the going market price for one bindle similar in size to what you confiscated here?
A. Ten dollars. It is called a dime bag.”
Record, pp. 93-94. He also stated that two of these particular bindles would be necessary to comprise a single dose for a regular user. However, he also stated that a heavy user might ingest two half-T‘s (half teaspoons) a day, with half-T‘s costing $125.
“Q. And what other than dime bags is heroin sold in?
A. Dime, thirty, fifty—that is, thirty dollars, fifty dollars—half a “T“, which is half a teaspoon—teaspoon—a spoon, or a dipper, which is the same size. It is a tablespoon.
Q. Alright, and for instance, you mentioned half a “T“. How much would that go for, or in August of ‘83 how much would it have gone for?
A. Half a “T” is $125.00.
Q. On the bindles, the size which you found in State‘s Exhibit 1, how many doses would be contained in one such bindle?
A. Well I think you would use two of them. Q. So it would be half a dose?
A. Well, it would all depend on the persоn themselves. If they are a strong user it takes more, and if they was just beginning, they would just take one.
Q. Alright, if they were a strong user how many would they use?
A. They can go all the way up to a half a “T” at a time maybe twice a day.”
Record, pp. 94-95. The only corroborative evidence offered by the other arresting officer, Officer Harvey was that he found no evidence of drug use in O‘Grady‘s cаr and had observed no needlemarks on his person.
O‘Grady testified he threw something else out of his car, but the jury evidently chose to believe the State‘s evidence and found him guilty of dealing in heroin.
DECISION
Sufficiency of the Evidence
O‘Grady contends the jury verdict here was contrary to law because the State failed to present sufficient evidence of the offense of dealing, particularly of the element of requisite intent. We agree.
The specific crime of which O‘Grady was charged is at
“A person who:
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(2) possesses, with intent to ... deliver, a controlled substance, pure or adulterated, classified in schedule I [heroin]
commits dealing in a schedule I ... controlled substance, a Class B felony.” (Emphasis added.)
O‘Grady alleged the element of “intent to deliver” was not supported by the evidence most favorable to the verdict. Because intent is a mental state, the trier of fact must usually “resort to reasonable inferences based upon examination of the surrounding circumstances to reasonably infer its existence.” Farno v. State (1974), 159 Ind.App. 627, 308 N.E.2d 724, 725. We cannot glean substantial evidence of probative value from this record to find O‘Grady possessed the requisite intent.
The record simply reveals O‘Grady threw a package of 26 bindles of half-doses of 2% heroin out of his car and that his outward physical appearance, after a cursory inspection, seemed to indicate he himself was not a user. There is nothing in the record to indicate a strip-search was conducted nor what parts of O‘Grady‘s anatomy the officers checked in order for them to state they observed no visible needlеmarks. Officer Wurz also testified heroin is usually sold in such bindles (the obverse inference being it was also so purchased) and that, ordinarily, a user only buys two or three bindles at a time. However, a close scrutiny of Wurz‘s evidence also reveals that O‘Grady possessed $260 worth of heroin (26 $10-bindles) and that a heavy user may need a $250 quantity in a single day to support his habit. We believe a casе nearly on point disposes of the issue of intent in O‘Grady‘s favor.
In Pettigrew v. State (1975), 165 Ind.App. 390, 332 N.E.2d 795, the defendant was convicted of the sale of heroin under an earlier, similar statute. See 1971 Ind. Acts, P.L. 468 § 1 et. seq. Pettigrew went to the door of a home which the police had under surveillance, returned to the edge of the porch from whence he came, dropped a white envelope beside thе porch steps then returned to the door. The police recovered the envelope, which was labelled “Pettigrew, Mabel” and contained 40 individually wrapped foil packages of heroin. Pettigrew denied any connection with the drugs (as did O‘Grady here). As this court stated in Pettigrew, and what we find applicable here:
“The record in the instant case is devoid of evidence tending to prove any transaction or communication between [the defendant] and any other person with reference to the heroin. Likewise,
there is no evidence tending to prove the existence of a distribution scheme or prearranged sale. Furthermore, the manner in which [the defendant] disposed of the heroin would not support an inference of intent to deliver or dispense.”
165 Ind.App. at 393, 332 N.E.2d at 798. We thus find O‘Grady‘s situation lacking in the characteristics of a dealing offense for want of evidence, even circumstantial evidence supporting only an inference of dealing. See Meiher v. State (1984), Ind., 461 N.E.2d 115 (actual sale); Henry v. State (1978), 269 Ind. 1, 379 N.E.2d 132 (actual sale); Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793 (actual sale); Romack v. State (1983), Ind.App., 446 N.E.2d 1346 (intent to deliver based on quantity).
Our opinion in Thompson v. State (1980), Ind.App., 400 N.E.2d 1151, closely parallels the case here where no actual sale is in evidence, unlike the representative cases cited above. But in Thompson, the State did introduce testimony of a rеliable informant that an individual named “Bob” (defendant‘s name was Robert) had a large quantity of heroin for sale and was present at a restaurant where the defendant was found as directed and thereby arrested. Defendant was apprehended with three separate caches of heroin, a police officer testified the quantity was sufficiently large to indicаte resale, and a polygraph examination showed defendant was not truthful when asked if he had possessed the heroin with the intent to deliver. No such supportive evidence exists here; rather, in the absence of evidence of sale, an inference that the heroin was only for personal use is just as, if not more, tenable. We believe O‘Grady is distinguishable from Thompson v. State, supra, and similar сases because the vague evidence and equivocal testimony presented at O‘Grady‘s trial lacks the specificity and concreteness we believe must support the state‘s case, particularly with regard to the element of intent. See Pettigrew v. State, supra.
The dilemma faced by the trier-of-fact and by courts on appellate review of determining the significance оf certain quantities of drugs, in cases such as here where the issue becomes crucial to the state‘s case for lack of other real evidence, has been recognized by this court on several recent occasions. In Voirol v. State (1980), Ind.App., 412 N.E.2d 861, Judge Young, in addressing the question of whether a large quantity of drugs permits the inference of predisposition to sell, stated as follows:
“The inference permitted from possession of or access to a large quantity deрends upon a relative determination or comparison; the trier of fact must have some basis from which to determine a particular quantity is large. We surmise that a quantity permitting an inference of predisposition to sell would be such a quantity that could not be personally consumed or utilized and therefore of necessity available for delivery or sale.”
Id. at 864 (emphasis in original; footnote omitted). Then, again, in Romack v. State, supra, a сase more directly on point, the quantity of the drugs in the defendant‘s possession was the determinative factor where there was no evidence of the significance of such a quantity:
“Illegal possession of large quantities of narcotics does not create a presumption of intent to deliver, but may support an inference of intent.... The probative value of quantity in proving intent obviously increases as the quantity itself becomes greater, but there is some confusion as to how the State may prove that a particular quantity exceeds an amount which would be possessed for personal consumption.
“At Romack‘s trial, the State failed to introduce expert testimony as to quantity and personal use. We believe that the importance of quаntity was attenuated due to the absence of such testimony. In some circumstances, that omission would prove fatal, especially where there is evidence that the defendant is a drug user and where the amount of narcotics in possession is less than the quantity in the present case [two hundred tablets of methaqualone].”
There was evidence at trial which might tenuously have connected O‘Grady to a dealing offense. Officer Wurz testified, over O‘Grady‘s hearsay objection, tо the content of the informant‘s tip he received, such content revealing that O‘Grady had been selling heroin at the corner of Indiana Avenue and St. Clair Street from a green Chevrolet with one off-colored door. The trial court admitted the evidence but only after admonishing the jury to disregard the substance of the conversation and to merely consider it as evidenсe of why the officer proceeded as he did. Whether the trial court‘s ruling was correct or not, this testimony inculpating O‘Grady was not supposed to be used as substantive evidence by the jury. Thus, what we are left with on appellate review is a record where the bulk of the evidence is as insufficient as the State‘s case in Pettigrew, supra, 165 Ind.App. 390, 332 N.E.2d 795. The additional awkwardly presented evidence related to customary sales (types of packaging, prices, amounts needed, etc.) and to a superficial nonspecific observation that O‘Grady was not a user. This is of such speculative value that it adds nothing to the Pettigrew-like facts. Thus, the State presented insufficient evidence for the jury to convict O‘Grady of dealing in heroin.
We have considered the possibility оf reducing O‘Grady‘s conviction to the lesser included offense of possession. However, the information by which O‘Grady was charged tracks almost exactly the statutory language in
Reversed.
CONOVER, J., concurs in result with opinion.
CONOVER, Judge, concurring in result.
I concur in the result. Possession of a large quantity of heroin is sufficient to infer an intent to sell in some cases. Cf. Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793, 796; Thompson v. State (1980), Ind.App., 400 N.E.2d 1151, 1153. However, when this is the only evidence from which intent to sell may be inferred and it is coupled with uncontroverted testimony a user may require nearly all of it for personal use, thе evidence is not sufficient to show intent to deal.
Here, however, under all the evidence in this case, 26 packets of heroin is not a sufficiently large quantity from which intent to sell may be inferred. In this regard it is uncontroverted
(a) a heroin user may require nearly all the 26 packets found in O‘Grady‘s possession for his personal use, and
(b) heroin may be inhaled through the nose, a proсess which leaves no observable needle marks.
Thus, O‘Grady may have been a heroin user who had in his possession only enough to satisfy his personal needs. Such evidence is clearly insufficient to support a reasonable inference of intent to sell.