William Bowman v. State of Indiana ( 2015 )

May 26 2015, 8:54 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Bowman, May 26, 2015
Appellant-Defendant, Court of Appeals Case No.
21A04-1404-CR-180
v. Appeal from the Fayette Circuit
Court; The Honorable Beth A.
Butsch, Judge;
State of Indiana, 21C01-1310-FA-768
Appellee-Plaintiff.
May, Judge.
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[1] William Bowman appeals his conviction of and sentence for Class A felony
dealing in a narcotic within 1,000 feet of a school1 and his adjudication as an
habitual offender.2 As the State did not prove Bowman committed Class A
felony dealing in a narcotic within 1,000 feet of a school, we reverse.
Facts and Procedural History
[2] On October 29, 2012, Ciji Angel, who had previously agreed to be a
confidential informant, contacted Detective Scott Phillips. She claimed she had
just purchased heroin from Bowman, with whom she periodically lived. She
offered to complete a controlled buy of heroin from Bowman. Detective
Phillips agreed and met Angel in the parking lot of an elementary school
located not far from where Angel and Bowman lived.
[3] When Detective Phillips arrived, Angel gave him heroin that she claimed
Bowman had sold to her earlier that day. Detective Phillips then searched
Angel’s purse and pockets, performed a pat down, and placed an audio/video
recording device in Angel’s purse. He did not search inside Angel’s clothes
because a female officer was not present. He gave Angel $160.00 in unmarked
money and directed her to complete the controlled buy.
[4] Angel went to Bowman’s apartment and came back with a substance in a
baggie. Angel gave it to Detective Phillips, who did not field test it but testified
1
Ind. Code § 35-48-4-1 (2006).
2
Ind. Code § 35-50-2-8 (2005).
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it “look[ed] like heroin.” (Tr. at 157.) The substance was not tested by the
crime laboratory. The State charged Bowman with Class A felony dealing in a
narcotic within 1,000 feet of a school, and it alleged Bowman was an habitual
offender.
[5] On March 18, 2014, a jury found Bowman guilty as charged and adjudicated
him an habitual offender. On April 11, the trial court sentenced Bowman to
forty-five years.
Discussion and Decision
[6] When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the fact-
finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-
finder’s role, and not ours, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction. Id. To preserve
this structure, when we are confronted with conflicting evidence, we consider it
most favorably to the fact-finder’s verdict. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the fact-finder’s decision.
Id. at 147.
[7] To prove Bowman committed Class A felony dealing in a narcotic within 1,000
feet of a school, the State was required to prove he knowingly or intentionally
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possessed a narcotic, in this case heroin, with the intent to deliver that narcotic
within 1,000 feet of a school. Ind. Code § 35-48-4-1 (2006). The State did not
prove the substance Angel gave Detective Phillips was heroin, as Detective
Phillips did not field test the substance and the crime laboratory did not test it.
[8] The identity of a drug may be determined based on field testing or chemical lab
testing. Bellamy v. State, 259 Ind. 254, 256, 286 N.E.2d 401, 403 (1972). In
some instances, the identification of an illegal substance can be established
based on the witness’ experience with the substance if the circumstances of the
identification support the conclusion the witness’ identification is reliable.
Vasquez v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001). Other circumstantial
evidence may be sufficient to prove the identity of a substance without chemical
lab testing. Smalley v. State, 732 N.E.2d 1231, 1234 (Ind. Ct. App. 2000). There
was, however, no such evidence in this case.
[9] Detective Phillips did not field test the substance that was obtained as a result of
the “controlled” buy.3 In Vasquez, our Indiana Supreme Court upheld
Vasquez’s conviction of Class B misdemeanor inhaling toxic vapors. Police
testified the substance they discovered in Vasquez’s possession smelled and
3
While we find dispositive the insufficiency of the evidence against Bowman, we note there existed multiple
peculiarities with the procedure preceding and following Angel’s controlled buy. Angel was not searched
under her clothes, which Detective Phillips implied was normal procedure when a female officer is present.
Angel and Detective Phillips testified Angel often kept her personal stash of drugs in her bra. Detective
Phillips did not mark the money he gave Angel, and he testified regarding why he did not do so, “I know the
money’s not coming back; we’re not going to do an arrest that night. If we were going to do an arrest I
would mark it and uh take copies of it.” (Tr. at 157.) Finally, there existed no clear audio recording of a
drug-related transaction.
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looked like toluene, a substance listed under Ind. Code § 35-46-6-2(2)(A) as a
prohibited inhalant.
[10] The Court held: “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.” Vasquez, 741 N.E.2d at
1216-17. Unlike toluene, heroin does not have a distinct smell. Officer Phillips
did not field test the substance Angel claimed she obtained from Bowman
during the “controlled” buy, and he testified only that it “look[ed] like heroin.”
(Tr. at 157.)
[11] In Smalley, we upheld Smalley’s conviction of dealing in cocaine even though
the confidential informant had ingested it. We held the circumstantial evidence
presented by the State was sufficient to prove Smalley dealt in cocaine. Smalley
himself testified the substance was cocaine and the confidential informant
bought two baggies of cocaine within minutes of each other. In Smalley, we
relied on Clifton v. State, 499 N.E.2d 256, 258 (Ind. 1986), in which
circumstantial evidence supported Clifton’s conviction of dealing in heroin.
Clifton was in possession of seven packages similar to those sold to a
confidential informant, and all of those packages were tested at a chemical lab
and were determined to be heroin. Id. None of the circumstances in Smalley or
Clifton exist in the instant case.
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[12] Because the State did not prove the product of the “controlled” buy was heroin,
there was not sufficient evidence Bowman committed Class A felony dealing in
a narcotic within 1,000 feet of a school. Accordingly, we reverse. 4
[13] Reversed.
Barnes, J., and Pyle, J., concur.
4
As we reverse Bowman’s conviction, his adjudication as a habitual offender must also be reversed. See
Whaley v. State, 843 N.E.2d 1, 10 n.8 (Ind. Ct. App. 2006) (a habitual offender adjudication is rendered
invalid by the reversal of the crime to which it is attached), trans. denied.
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