Jason Poole v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
May 23 2012, 9:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON POOLE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1110-CR-904
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa Borges, Judge
The Honorable Stanley Kroh, Commissioner
Cause No. 49G04-1102-FC-8035
May 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Jason Poole appeals his convictions for Class A misdemeanor possession of
paraphernalia and Class B misdemeanor possession of a knife with an automatic blade.
We affirm.
Issue
Poole raises one issue, which we restate as whether there is sufficient evidence to
support his convictions.
Facts
On February 6, 2011, a neighbor noticed unusual activity at a residence in
Indianapolis and reported the activity to the owner of the home. The owner contacted
police, who apprehended Poole as he left the house. A search of Poole’s pockets
revealed a crack pipe containing cocaine residue and a switchblade knife.
On February 8, 2011, the State charged Poole with Class C felony burglary, Class
D felony theft, Class A misdemeanor possession of paraphernalia, and Class B
misdemeanor possession of a knife with an automatic blade. The State also alleged that
the Class A misdemeanor possession of paraphernalia charge should be enhanced to a
Class D felony and eventually alleged that Poole was an habitual offender. Following a
bench trial, Poole was convicted of Class C felony burglary, Class A misdemeanor
possession of paraphernalia, and Class B misdemeanor possession of a knife with an
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automatic blade and was found to be an habitual offender. Poole now appeals the
misdemeanor convictions.1
Analysis
Poole argues that there is insufficient evidence to support his convictions for Class
A misdemeanor possession of paraphernalia and Class B misdemeanor possession of a
knife with an automatic blade. The standard of review for claims of insufficient evidence
is well settled. We do not reweigh the evidence or judge the credibility of the witnesses,
and we respect the jury’s exclusive province to weigh conflicting evidence. Jackson v.
State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative evidence and
reasonable inferences supporting the verdict and affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt. Id.I. Possession of Paraphernalia
The State alleged that Poole knowingly or intentionally possessed a raw material,
an instrument, a device, or other object that he intended to use for introducing a
controlled substance into his body. See Ind. Code § 35-48-4-8.3(b). “The State must
prove the defendant’s intent to use an instrument for illegal purposes beyond a reasonable
doubt.” McConnell v. State, 540 N.E.2d 100, 102 (Ind. Ct. App. 1989). Intent to use an
instrument for illegal drug use may be inferred from circumstantial evidence. Id.Poole argues the mere fact that he possessed metal cylinders that tested positive
for cocaine residue in his jacket pocket, without additional evidence, is insufficient to
1
Poole does not challenge the Class C felony burglary conviction or his status and an habitual offender.
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prove the element of knowledge or intent necessary to enhance the offense from an
infraction to a misdemeanor. We disagree. In McConnell, we held that the presence of
marijuana would be strongly probative of defendant’s intent to use an instrument in
connection with marijuana and that “if there was sufficient evidence to show that the pipe
contained marijuana, then the evidence was sufficient on the intent element.” Id. at 103.
Poole does not dispute that the pipe tested positive for cocaine residue. Additional
evidence of intent comes from an investigating officer’s testimony that the pipe
“appeared to have been used - - it appeared that one end of it had been lit at some point.”
Tr. p. 36. Given the location of the pipe in Poole’s jacket pocket, the cocaine residue on
it, and the fact that it appeared to have been used, there is sufficient evidence to support
the Class A misdemeanor conviction.
II. Possession of a Knife with an Automatic Blade
To prove Poole committed the offense, the State was required to show that Poole
possessed a knife that opens automatically or may be propelled to open by hand pressure
applied to a button, device containing gas, spring, or other device in the handle of the
knife. See I.C. § 35-47-5-2. Poole argues that the State failed to prove the knife was
operational.
At trial, the investigating officer testified that there is “a button on the knife where
it actually springs the action of the knife up.” Tr. p. 29. The officer testified that he
knew what an automatic switchblade was and that this knife was an automatic
switchblade. The officer again explained, “[t]here’s a button on the side of it that springs
the action up for the knife rather than a simple knife where you actually hand pull it out.”
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Id. at 33. Although the State said the knife did not need to be opened “right now” when it
was offered into evidence, the investigating officer’s testimony is evidence from which
the trial court could have inferred the functionality of the switchblade knife. Id. at 32.
Conclusion
There is sufficient evidence to support Poole’s convictions for Class A
misdemeanor possession of paraphernalia and Class B misdemeanor possession of a knife
with an automatic blade. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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