Haynes v. State

PIVARNIK, Justice.

Defendant Jesse Lee Haynes was convicted on two counts at the conclusion of a jury trial in Elkhart Superior Court on February 6, 1980; possession of Marijuana, Ind.Code § 35-48-4-11 (Burns Supp.1981), and dealing in Marijuana, Ind.Code § 35-48-4-10 (Burns Supp.1981). The following day, February 7, 1980, defendant was found to be a habitual offender, Ind.Code § 35-50-2-8 (Burns Supp.1979). Defendant was sentenced to a term of four (4) years on each of the tWo counts; upon the finding of habitual offender, the defendant was given an additional sentence of thirty (30) years imprisonment. His conviction and sentence is the subject of this appeal.

Five errors are asserted by the defendant, concerning: (1) whether there was sufficient evidence introduced at trial to show defendant sold marijuana to informant Robert Neely; (2) whether there was sufficient evidence introduced at trial to show defendant either actually or constructively possessed the marijuana found in his house; (3) whether the trial court erred in refusing defendant’s tendered instruction number eight relating to circumstantial evidence; and (4) whether the trial court erred in permitting the jury to take certain final instructions to the jury room in lieu of reading them in open court at the end of the habitual offender phase of the trial. Defendant’s fifth error, an allegation that the trial court erred in denying his motion to suppress all evidence obtained by the use of the search warrant, will not be reviewed here. Although a motion to suppress has been overruled prior to trial, when the evidence is later offered at trial no error will, be preserved unless there is an objection at that time. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367; Pointon v. State, (1978) 267 Ind. 624, 627, 372 N.E.2d 1159, 1161. Defendant’s failure to object has resulted in a waiver of this error on appeal.

The crime in question occurred on October 19, 1979, when an informant, Robert Neely, acting under police instruction, purchased marijuana from the defendant. That same evening a search warrant was issued for the defendant’s residence. After reading the warrant to the defendant, the police found some marijuana in a bathroom occupied at that time by Nancy Reid, a guest of defendant.

I.

Defendant Haynes first argues that the evidence is insufficient to support his conviction of selling marijuana. In support of this alleged error, defendant claims that the controlled buy did not have adequate controls and that no rational trier of fact could have found that the defendant sold marijuana.

One of defendant’s contentions was that Robert Neely, the police informant who bought the marijuana, was an inherently incredible witness at the trial. This argument ignores our well-established standard of review in cases where the evidence is claimed to be insufficient. We will not re weigh the evidence nor judge the credibility of witnesses. E.g., Ashbaugh v. State, (1980) Ind., 400 N.E.2d 767, 775; Stanley v. State, (1980) Ind., 401 N.E.2d 689, 693; Willard v. State, (1980) Ind., 400 N.E.2d 151, 160. These are functions for the jury to perform. E.g., Riggenbach v. State, (1979) Ind., 397 N.E.2d 953, 956; Taggart v. State, (1979) Ind., 390 N.E.2d 657, 659. In addition, a conviction in a drug case may be sustained upon the testimony of an informant alone. Stewart v. State, (1976) 170 Ind.App. 696, 702, 354 N.E.2d 749, 754; Jones v. State, (1975) 166 Ind.App. 160, 162, 334 N.E.2d 716, 717.

The evidence at trial revealed the following: Robert Neely, the police informant, tried four times to buy marijuana from defendant Haynes. The first time defendant was not at home; the second time defendant was at home but no sale was made. On the third attempt Neely and defendant met near the home of Neely’s parents but Neely testified that defendant had no marijuana but would get some later. Neely and the police met later that evening. Crowder, one Of the two officers present, searched Neely and his car but found no marijuana. After the search Neely was given $100.00 in order to purchase the marijuana. The police followed Neely as he drove to defendant’s.house. Neely parked in front of defendant’s house and was watched by the police as he approached the residence. The two police officers, Crowder and Cutler, testified that Neely appeared to enter the house. When Neely left the house Crowder and Cutler followed him to a church parking lot. There Neely handed over a bag of marijuana and $60.00. He said the marijuana cost $35.00 but defendant Haynes did not have any change for the twenties. On the basis of this exchange a search warrant was issued for defendant Haynes’ residence.

Defendant relies on Mills v. State, (1978) Ind.App., 379 N.E.2d 1023 for his contention that the controlled buy was faulty. The Court of Appeals stated in Mills :

“A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband. Except for what actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction.”

Id., 379 N.E.2d at 1026.

Haynes contends that under Mills, the controlled buy was not adequate because: the police did not adequately search Neely and the car he was driving prior to the alleged buy; the police did not observe him at all times prior to and after he was in defendant’s home; and the police did not observe or monitor the buy.

First, under Mills, the police do not have to observe the actual buy. They ascertain that the informant goes up to the house empty-handed and comes back with the controlled substance. There is no requirement that they actually see the illegal transaction take place. Second, Neely was searched before the controlled buy. The police gave him a “pat-down” search and also searched his car. They made sure he did not stop anywhere or meet anyone before arriving at defendant’s house. It is true that due to darkness the police officers did not actually see Neely enter the defendant’s home although they did observe Neely approach the front of the house. However, on the witness stand, the police officers testified that they watched Neely leave the house. In addition, no one was seen to enter or leave the house while Neely was inside. When Neely came out he entered his car and drove to a church parking lot. The police followed him and made sure he did not stop to meet anyone on the way. While in the parking lot Neely turned over the marijuana and the remaining amount of money. While it is true that the record does not indicate that Neely was searched after returning from the defendant’s house, the fact remains that he was searched before he entered defendant’s house. At that time no marijuana was found but when Neely returned he did have marijuana. See Watt v. State, (1980) Ind.App., 412 N.E.2d 90.

We believe that the controls over the buy were adequate and the evidence was sufficient to sustain a conviction for selling marijuana. The fact that the informant was not actually seen entering the house was a factor for the jury to consider in weighing the evidence. Whirley v. State, (1980) Ind. App., 408 N.E.2d 629. This is not to say that in all instances such behavior will uphold a controlled buy. We are merely saying that under the facts presented before us, the controls were adequate and the evidence was sufficient to convict defendant Haynes of selling marijuana.

II.

Defendant’s second argument also deals with a sufficiency of the evidence claim. As we noted above, we will not reweigh the evidence nor judge the credibility of witnesses; these are functions for the jury to perform. See Issue I, supra, and cited cases therein.

Upon the issuance of the search warrant, three officers went to 505 Hubbard Street and read the warrant to the defendant. While one officer was reading the warrant, another officer was walking around the house. This officer, Cutler, observed someone in the bathroom through a window. The three officers, Crowder, Cutler, and Lee, entered the residence. Once inside, Crowder finished reading the warrant and Cutler went to the bathroom. He knocked upon the door and it was opened by Nancy Reid. Two bags of marijuana were found inside a counter of the bathroom. Nancy Reid, testifying under a grant of immunity, said the marijuana was .hers and defendant did not know she had it; earlier she had given a statement saying it belonged to Haynes. Defendant said it was not his and he had no idea she brought it or had it in the house. Steve Staggs testified that he sold marijuana to the defendant earlier that evening. There was also evidence of the sale of marijuana by the defendant to the police informant, Robert Neely.

Since possession of a controlled substance in Indiana may be founded upon either actual or constructive possession, we need only determine whether the evidence was sufficient to prove constructive possession. Defendant states that the marijuana was found in the bathroom, a room he feels was under the exclusive control of Nancy Reid since she was occupying it at the time. Therefore, defendant feels that although he was the owner of the house, the control of the bathroom was nonexclusive at the time the marijuana was found. Defendant is correct in stating that mere presence in the vicinity or association with one having possession of drugs is not sufficient to sustain a conviction. See Ledcke v. State, (1973) 260 Ind. 382, 390, 296 N.E.2d 412, 416; Martin v. State, (1978) Ind.App., 372 N.E.2d 1194, 1198. However, additional proof may be introduced to show that defendant had knowledge of the contraband on the premises; this would indicate a knowing possession of the marijuana. Judge Buchanan stated in his concurring opinion in Martin :

“[I]t does appear that Indiana has adopted the rule that if possession of property is non-exclusive, the prosecution must bring forth some evidence which would indicate the defendant had knowledge of the drug. Greely v. State, (1973) Ind. App., 301 N.E.2d 850. If, in addition to non-exclusive possession, there had been flight, Ledcke v. State, (1973) 260 Ind. 382, 296 N.E.2d 412, furtive gestures, Moss v. State, (1975) Ind.App., 333 N.E.2d 141, close proximity by Martin to the contraband, Thurman v. State, (1974) Ind. App., 319 N.E.2d 151, close proximity of the contraband to items owned by Martin. See People v. White, (1969) 71 Cal.2d 80, 75 Cal.Rptr. 208, 450 P.2d 600, or if the contraband was in plain view, Mills v. State, (1975) Ind.App., 325 N.E.2d 472, a conviction might be sustained.”

Id., 372 N.E.2d at 1200.

There was additional evidence introduced at trial showing or indicating that defendant Haynes had some knowledge of marijuana in his house. Staggs testified about selling marijuana to the defendant earlier in the evening; Neely testified that defendant sold him marijuana a short time before it was discovered in the bathroom. This evidence adds up to show that defendant Haynes knew of the presence of marijuana and therefore was in constructive possession of it because, as owner of the house, he could control the activities inside. We find that there was sufficient evidence to prove Haynes had knowing and constructive possession of marijuana.

III.

Haynes next argues that the trial court erred in refusing tendered instruction number eight regarding circumstantial evidence. This instruction provided:

“You are instructed that a jury must believe beyond a reasonable doubt that the accused committed the crime with which he is charged, and where the evidence is circumstantial, as it was in this case, it must be of so conclusive a character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis of his innocence. The verdict may not be based on mere suspicion, possibility, guess, or conjecture.”

The trial court refused the instruction because it was “duplicated by instructions previously given by the Court covering the same issues.... ”

First, we would note that the trial court did have an instruction on circumstantial evidence, although it was not in the form that defendant requested. Second, this case involved both direct and circumstantial evidence. Some of the direct evidence included a witness’ testimony that he sold marijuana to the defendant on the night of October 19, 1979; another witness, the police informant, testified that he bought marijuana from the defendant on that evening. There was also testimony that the marijuana was found at 505 Hubbard Street and that defendant resided at that address. Where there is both direct and circumstantial evidence of guilt, the trial court is not required to instruct the jury on circumstantial evidence. Bales v. State, (1981) Ind., 418 N.E.2d 215, 217; Faught v. State, (1979) Ind., 390 N.E.2d 1011, 1017; Sammons v. State, (1979) Ind. App., 397 N.E.2d 289, 293. The trial court did not err in refusing the tendered instruction.

IV.

On February 6, 1980, the jury found defendant Haynes guilty of delivery of marijuana and possession of marijuana. The following day the jury heard evidence on the habitual offender charge. The trial court then read instructions 1-8 to the jury. In addition, the trial court resubmitted several final instructions which had been read to the jury during the trial of the underlying felony. The trial court instructed the jury to construe all of the instructions together. Defendant Haynes argues that it was error for the jurors to take the resubmitted instructions into the jury room without the trial court reading them again to the jury in open court.

This court has stated in Wofford v. State, (1979) Ind., 394 N.E.2d 100 that “[although jury instructions are generally not to be sent to the jury room during deliberations this Court has held that it is harmless error to do so if the crucial requirement of first reading the instructions in open court in the presence of the parties and their attorneys was met. Morris v. State, (1979) Ind., 384 N.E.2d 1022; Jameison v. State, (1978) Ind., 377 N.E.2d 404.” The rationale for having the trial court orally instruct the jury in open court is that once the instructions go to the jury room the trial court judge has no way of knowing how the job of reading the instructions was done or if it was done at all. Williams v. State, (1978) 269 Ind. 430, 431, 381 N.E.2d 458, 458.

In the case at bar, all the instructions sent to the jury room had been read first in open court. The same jury that convicted defendant on the underlying felony heard evidence on the habitual offender charge. The only problem presented here is that several of the instructions had been read the day before when the jury convicted the defendant on the underlying felony. Those instructions were not reread before being given to the jury when it began deliberations on the habitual offender charge. This Court has held that the habitual offender procedure does not constitute a separate crime or trial; rather, it provides for the imposition of a greater sentence for the crime charged. Norris v. State, (1979) Ind., 394 N.E.2d 144, 147; Eldridge v. State, (1977) 266 Ind. 134, 139, 361 N.E.2d 155, 159, cert. denied (1977) 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287. Therefore, finding that all of the instructions had been read once in open court to the same jury, and since the habitual offender phase of the trial does not constitute a separate trial, we do not find any error in resubmitting instructions without re-reading them.

The judgment of the trial court is affirmed.

GIVAN, C. J., and DeBRULER and PRENTICE, J J., concur. HUNTER, J., dissents in part and concurs in part with separate opinion.