Houston v. State

DeBRULER, Justice,

dissenting.

Appellant claims on appeal that the evidence serving to identify the substance as marijuana was insufficient. In determining this question, we do not weigh the evidence nor resolve questions of credibility, but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. Circumstantial evidence is no different than other evidence for this purpose. The conviction will be affirmed if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Taylor v. State (1973), 260 Ind. 64, 291 N.E.2d 890; Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657.

The State’s exhibit involved is an empty cigarette wrapper found taped beneath a shelf. It held some loose material described by an officer as “a green leafy substance” and a few cigarette papers for rolling cigarettes. The officer who tested the substance testified that it “appeared to be marijuana.” His knowledge of marijuana was gained in several arrests for possession of marijuana and several field tests of it. He got a field test kit from an office in the jail, placed some of the substance inside a plastic test kit, and slid a piece of plastic over it to seal the bag. His testimony continued:

A. There’s three different ampules in there that you break, one at a time until the third is broke and it gives you the results, one way or another.
*120Q. It tells you positive or negative for marijuana?
A. Right.
$ $ $ * sjc sic
Q. What was the result of the field test on that particular substance?
A. It tested positive for marijuana.
Q. O.K., and that is consistent with your visual identification of this substance, as well?
A. Yes it is.

The evidence tending to show the substance to be marijuana thus consists of its surreptitious handling, its presence along with paraphernalia for smoking, together with the the results of its testing. From this evidence, a rational trier of fact could not conclude to a moral certainty beyond a reasonable doubt that the substance was marijuana, and therefore the conviction should not be affirmed.

The opinions of the officers were based upon very limited experience with marijuana and solely upon their visual perceptions resulting from their inspection. The tester was not shown to have been trained in the use of the field test kit nor to have an appreciation of its reliability or processes. The appellation “field” carries with it the connotation that it is to be employed by “field” personnel without scientific or laboratory skills for making quick decisions such as whether probable cause exists. It also means that the test carries with it a substantial risk of error.