Vasquez v. State

ATTORNEY FOR APPELLANT

William F. Thoms, Jr.
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Yvonne M. Carter
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
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IN THE

SUPREME COURT OF INDIANA

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JOSE VASQUEZ, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0012-CR-740
)
v. ) Indiana Court of Appeals
) Cause No. 49A02-0006-CR-391
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard Good, Judge
Cause No. 49F15-9910-DF-172952
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ON PETITION FOR TRANSFER

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February 2, 2001

BOEHM, Justice.
We hold that testimony as to the nature of a compound may be based on
a witness’ experience with it if the circumstances support the conclusion
that the witness’ identification is reliable.

Factual and Procedural Background

On October 4, 1999, two Indianapolis police officers, Jeffrey Kelley
and Steve Knight, responded to a report of a burglary at an apartment at 55
South Linwood. Jose Vasquez answered the door and appeared to be
disoriented, non-responsive, off-balance, and thick-tongued. The officers
smelled what they believed to be a toluene-type substance. A search of the
residence revealed a clear liquid substance in a bottle near a rag soaked
with the substance. Vasquez was arrested and charged with glue sniffing.
At a bench trial, both officers testified that they believed the substance
in the bottle was toluene. Vasquez was found guilty of glue sniffing.[1]
Vasquez appealed and the Court of Appeals reversed, holding that the
evidence was insufficient to support Vasquez’s conviction because it was
not established that the substance in the bottle was toluene. Vasquez v.
State, 735 N.E.2d 1207, 1208 (Ind. Ct. App. 2000). Judge Darden, in
dissent, found that the officers’ testimony was sufficient to affirm the
conviction. Id. at 1209.

Sufficiency of the Evidence

Vasquez claims that there is insufficient evidence to support his
conviction for glue sniffing because the State did not prove either (1)
that the substance was toluene, or (2) that Vasquez inhaled with the intent
to cause intoxication. Specifically, he contends that identifying the
substance based solely on the testimony of two police officers, neither of
whom was an expert, does not establish beyond a reasonable doubt that the
substance was toluene.
Our standard for reviewing a claim of sufficiency of the evidence is
well settled. We do not reweigh the evidence or judge the credibility of
witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996). We look to
the evidence and the reasonable inferences therefrom that support the
verdict and will affirm a conviction if evidence of probative value exists
from which a jury or judge could find the defendant guilty beyond a
reasonable doubt. Id. “[A]n inference cannot be based upon evidence which
is uncertain or speculative or which raises merely a conjecture or
possibility.” Shutt v. State, 233 Ind. 169, 174, 117 N.E.2d 892, 894
(1954). However, the testimony of an observer, skilled in an art or
possessing knowledge beyond the ken of the average juror may be nothing
more than a report of what the witness observed, and therefore, admissible
as lay testimony. See Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997)
(Examination of cells under a microscope is not a matter of scientific
principle, but “[r]ather, . . . a matter of the observations of persons
with specialized knowledge.”). Under Indiana Evidence Rule 701, a lay
witness may testify to “those opinions or inferences which are rationally
based on the perception of the witness.”
The crime of glue sniffing requires that: (1) a person inhales or
ingests, (2) the fumes of model glue or a substance that contains toluene,
(3) with the intent to cause a condition of intoxication, euphoria,
excitement, exhilaration, stupefaction, or dulling of the senses. Ind.Code
§ 35-46-6-2 (1998). The evidence showed that Kelley and Knight entered the
apartment and found a bottle of a clear liquid and a rag soaked in the same
substance. Vasquez displayed the behavior of a person under the influence
of toluene. “[T]he identity of a drug can be proven by circumstantial
evidence.” Clifton v. State, 499 N.E.2d 256, 258 (Ind. 1986). The same is
true of toluene. The opinion of someone sufficiently experienced with the
drug may establish its identity, as may other circumstantial evidence. Id.
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.
In this case, there was both testimony of those familiar with toluene
and other circumstantial evidence. Although not experts, both officers
testified that, based on their observations and experience, the substance
smelled and looked like toluene. The trial court could readily find that
this inference was rationally based on the officers’ perceptions. Kelley,
who had over six years of police experience, testified that the rag and
bottle were paraphernalia associated with inhaling toluene. Knight, a
fourteen-year officer, testified that police officers routinely identify
toluene by smell and appearance because its volatility and difficulty in
disposal make it hard to transport and test. This was sufficient to
support the trial court’s finding that the substance contained toluene.
Vasquez’s intent to become intoxicated can also be inferred from the
same evidence. Intent is a mental state that the trier of fact often must
infer from the surrounding circumstances. Goodner v. State, 685 N.E.2d
1058, 1062 (Ind. 1997). The police officers found items commonly used in
glue sniffing and Vasquez was noticeably impaired when they arrived. A
reasonable trier of fact could determine beyond a reasonable doubt that
Vasquez had inhaled the substance with the intent to become intoxicated.
This evidence raises more than mere speculation or conjecture.
Although it was perhaps not the best way to prove the case, our job is not
to reweigh the evidence or judge the credibility of the witnesses. As a
logical consequence of the evidence presented, the trial court could
reasonably infer that Vasquez inhaled a product containing toluene with the
intent to cause intoxication.[2]

Conclusion

The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
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[1] Vasquez was also charged with residential entry, but his motion for a
judgment on the evidence on that count was granted.
[2] Vasquez argues that “Indiana Code 35-46-6-2 also prohibits inhaling the
fumes of a substance containing toluene, but not toluene itself.”
Recently, this Court held that legislation will not be construed to produce
an upside-down result. Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000).
This would surely be the result if we held that inhaling a product
containing toluene was illegal while inhaling toluene was not.