Attorney for Appellant Attorneys for Appellee
Ritchie Halsema Steve Carter
Thomas J. O’Brien Attorney General of
Indiana
O’Brien & Dekker
Lafayette, Indiana Monika Prekopa Talbot
Deputy Attorney General
Attorney for Appellant Indianapolis, Indiana
Frank L. Halsema
Phillip R. Smith
Helmerick & Smith
Lafayette, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 79S04-0307-CR-350
Ritchie Halsema,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
No. 79S02-0307-CR-351
Frank L. Halsema,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Tippecanoe Superior Court, Nos.79D01-0109-CF-89 and 79D01-
0109-CF-92
The Honorable Donald C. Johnson, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals
Nos. 79A04-0207-CR-316 and 79A02-0207-CR-545
_________________________________
March 9, 2005
Rucker, Justice.
Is the weight of a given quantity of drugs a matter of general
knowledge and experience that jurors possess? On this record we conclude
it is not.
Background
Tried as co-defendants, cousins Frank and Ritchie Halsema were
convicted of several drug-related offenses including possession of
methamphetamine within 1000 feet of a school. They pursued separate
appeals. One issue common to both was whether, in the absence of
scientific measurement, there was sufficient evidence to demonstrate that
the weight of the drugs was at least three grams. In Frank Halsema’s case,
one panel of the Court of Appeals said yes. See Halsema v. State, 783
N.E.2d 1199, 1205 (Ind. Ct. App. 2003) (holding that jurors can “use their
common sense and experience to determine whether [the drugs were] at least
three grams”). In the case of Ritchie Halsema, another panel of the Court
said no. See Halsema v. State, No. 79A04-0207-CR-316, slip op. at 6, (Ind.
Ct. App. Mar. 6, 2003) (“We are unpersuaded by the State’s argument that
such a specific determination of weight should be left to the ‘common sense
and experience’ of a jury.”). We now address these two cases in a
consolidated opinion.
Facts and Procedural History
In the late evening hours of September 15, 2001, a West Lafayette
patrol officer observed a 1984 Chrysler LeBaron with a defective exhaust
traveling along U.S. Highway 52 in Tippecanoe County. The passenger was
not wearing a seat belt. Following for about a mile the officer observed
the car twice swerve across the center line. Activating his lights to
initiate a traffic stop, the officer observed the two occupants in the car
bending down and making furtive gestures. A license plate check revealed
that the car was registered to a person by the name of Juliet Whiteley,
whose address was 1216 Shenandoah Drive, Lafayette, Indiana. When the
officer approached the car, he saw a case of beer on the back seat,
observed that the driver’s eyes were bloodshot, and smelled an odor of
alcohol on his breath. The driver identified himself as Ritchie Halsema,
advised the officer he lived at 1216 Shenandoah Drive, and informed the
officer that his driver’s license was suspended. He was arrested.
Other officers arrived on the scene. When asked to identify himself,
the passenger of the car said that his name was Lonnie Halsema. He was
later identified as Frank Halsema. As one of the officers was giving Frank
Halsema a citation for not wearing a seat belt, he saw on the passenger
side of the car a clear plastic bag containing a green leafy substance.
Suspecting the substance was marijuana, the officer placed Frank under
arrest.
The officers then searched the car and found throughout a large
quantity of individually wrapped bags of what later was identified as
methamphetamine and a number of pills later identified as schedule II
controlled substances. In the trunk of the car, the officers found a set
of digital scales and various drug paraphernalia. Both Frank and Ritchie
stipulated at trial that the total amount of methamphetamine found in the
car was 112 grams.
The following day officers went to 1216 Shenandoah Drive, which is
located within 1000 feet of a school, and spoke with Juliet Whiteley. Also
present was Whiteley’s three-year-old daughter and a man by the name of
Roger Ferguson. Whiteley informed the officers that she leased the
premises, that Ritchie was a friend, that he had been staying in the house
for the past five to seven days, and that he slept in her bedroom while she
slept on a couch downstairs. Whiteley signed a written consent form giving
the officers permission to search the residence. During the search,
officers confiscated methamphetamine from both Whiteley and Ferguson. They
also seized a quantity of methamphetamine from a dresser drawer in the
bedroom where Ritchie had been staying. The drawer also contained a black
organizer bearing Ritchie’s name, along with documents also bearing his
name.
The State charged Ritchie Halsema with dealing in methamphetamine, a
Class A felony; possession of methamphetamine within 1000 feet of a school,
a Class A felony; conspiracy to commit dealing in methamphetamine, a Class
A felony; possession of a schedule II controlled substance, a Class D
felony; maintaining a common nuisance, a Class D felony; operating a motor
vehicle as an habitual traffic offender, a Class D felony; possession of
marijuana, a Class A misdemeanor; and reckless possession of paraphernalia,
a Class A misdemeanor. Ritchie was also alleged to be an habitual
substance offender.
The State charged Frank Halsema with dealing in methamphetamine, a
Class A felony; possession of methamphetamine within 1000 feet of a school,
a Class A felony; conspiracy to commit dealing in methamphetamine, a Class
A felony; maintaining a common nuisance, a Class D felony; possession of
marijuana, a Class A misdemeanor; reckless possession of paraphernalia, a
Class A misdemeanor; and false informing, a Class A misdemeanor. Frank
also was alleged to be an habitual substance offender.
After a trial by jury in which the Halsemas appeared as co-
defendants, Ritchie Halsema was found guilty as charged. He thereafter
admitted to being an habitual substance offender. Frank Halsema was found
guilty of possession of methamphetamine within 1000 feet of a school,
possession of marijuana, reckless possession of paraphernalia, and false
informing. He was acquitted of the remaining charges. Frank Halsema also
admitted to being an habitual substance offender. The trial court imposed
forty-year concurrent sentences on Ritchie Halsema’s two Class A felony
convictions, imposed various concurrent terms of years for the remaining
convictions, and enhanced the sentence by five years for the habitual
offender adjudication for a total executed term of forty-five years. As
for Frank Halsema, the trial court imposed a forty-year sentence for the
Class A felony conviction, imposed various concurrent terms of years for
the remaining convictions, enhanced the sentence by five years for the
habitual offender adjudication, and suspended six months to probation for a
total executed term of forty-four years and six months.
The Halsemas pursued separate appeals. Frank Halsema raised three
issues: (1) whether there was sufficient evidence to support his
convictions for possession of marijuana and reckless possession of
paraphernalia; (2) whether there was sufficient evidence that he possessed
at least three grams of methamphetamine within 1000 feet of a school; and
(3) whether the jury’s verdict finding him guilty of possession of
methamphetamine, possession of marijuana, reckless possession of
paraphernalia, and false informing was inconsistent. The panel reviewing
the appeal affirmed the convictions. Ritchie Halsema raised two issues on
appeal: (1) whether Juliet Whiteley had the authority to give consent to
search a dresser drawer containing his personal effects; and (2) whether
there was sufficient evidence that he possessed at least three grams of
methamphetamine within 1000 feet of a school. Ritchie Halsema did not
challenge his other convictions. Finding it unnecessary to reach the first
issue, the panel reviewing this appeal reversed Ritchie Halsema’s
conviction for possession of methamphetamine within 1000 feet of a school.
Frank Halsema petitioned to transfer his case and the State petitioned
to transfer Ritchie Halsema’s case. Having previously granted both
petitions, we now address whether there was sufficient evidence to
demonstrate that the weight of the drugs was at least three grams. Finding
there was not sufficient evidence, we reverse the Halsemas’ convictions for
possession of methamphetamine within 1000 feet of a school as Class A
felonies. In Frank Halsema’s case we summarily affirm the remainder of the
Court of Appeals’ opinion. As for Ritchie Halsema, we also address whether
the trial court erred by admitting into evidence the methamphetamine seized
from the dresser drawer.
Discussion
Relevant to our discussion, the Halsemas were charged with and
convicted of possession of methamphetamine under Indiana Code section 35-48-
4-6 which provides in relevant part:
a) A person who . . . knowingly or intentionally possesses . . .
methamphetamine (pure or adulterated) commits possession of . .
. methamphetamine, a Class D felony, except as provided in
subsection (b).
b) The offense is . . .
(3) a Class A felony if the person possesses the . . .
methamphetamine in an amount (pure or adulterated) weighing
at least three (3) grams . . .
(B) in, on, or within one thousand (1,000) feet of:
i) school property;
ii) a public park;
iii) a family housing complex; or
iv) a youth program center
Ind. Code § 35-48-4-6 (West Supp. 2004). We first observe, and all parties
seem to agree, the methamphetamine that is the subject of this offense was
found in a bedroom dresser drawer at the residence. Apparently the car was
not located in, on or near the prohibited sites. There is no question that
the residence from which the drugs were seized was located within 1000 feet
of school property, specifically the Glen Acres Elementary School and the
Kiddie Kollege Day Care, a licensed day care facility. The Halsemas
stipulated as much at trial. See Appellant’s App. at 364. The issue is
joined on the question of whether there was sufficient evidence that the
drugs seized from the residence weighed at least three grams.[1]
Acknowledging that it introduced no evidence concerning the weight of the
drugs found in the bedroom dresser drawer, the State argues, “[T]he jurors
were able to examine the bag and use their common sense and experience to
determine whether the methamphetamine was at least three grams.” Br. of
Appellee at 9 (Ritchie Halsema v. State); Br. of Appellee at 8 (Frank
Halsema v. State). As we indicated earlier in this opinion, one panel of
the Court of Appeals agreed with the State’s position, while another panel
did not.
In the instant case the weight of the drugs is an essential element
of the offense. That is so because possession of methamphetamine in excess
of three grams within 1000 feet of a school enhances the offense from a
Class D felony to a Class A felony. As with any other essential element,
it must be proven by the State beyond a reasonable doubt. See Hutcherson
v. State, 381 N.E.2d 877, 881 (Ind. Ct. App. 1978) (reversing conviction
for possession of over ten grams of a controlled substance where State
failed to prove weight, an essential element), trans. denied.
It is certainly true that when determining whether an element exists,
the jury may rely on its collective common sense and knowledge acquired
through everyday experiences. See 12 Robert Lowell Miller, Jr., Indiana
Evidence § 201.101 (1995) (“[J]urors are instructed to use their own
knowledge, experience and common sense in weighing evidence . . . .”); 27
Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6075, at
450 (1990) (“Obviously, no juror can or should approach deliberations with
an entirely clean cognitive slate. Humans can make intelligent decisions
only by drawing upon their accumulated background knowledge and experience.
Jurors are not only permitted to make decisions in this manner, it is
expected of them[.]”); see also Sullivan v. State, 517 N.E.2d 1251, 1253
(Ind. Ct. App. 1988) (noting that “based upon common sense and experience
gained from everyday living” the jury could reasonably conclude that
defendant’s blood-alcohol level was higher at the time he was driving than
it was at the time he was tested), trans. denied.
However, a juror’s ability to determine the existence of a fact in
issue based on his or her common sense and experience is not unlimited.
Although our research has revealed no Indiana authority on point, we find
instructive a North Carolina case in which a defendant’s conviction for
felonious possession of marijuana was reversed where the State introduced
no evidence of weight. The Court observed, “The jury may not find the
existence of a fact based solely on its in-court observations where the
jury does not possess the requisite knowledge or expertise necessary to
infer the fact from the evidence as reflected in the record.” North
Carolina v. Mitchell, 442 S.E.2d 24, 28 (N.C. 1994). This seems to us an
eminently sensible observation. As applicable here, we are not persuaded
that the weight of a given quantity of drugs, especially when expressed in
a metric unit of measurement, is a matter of general knowledge and
expertise. Rather, as the Mitchell court observed with respect to
marijuana, “[t]his is a matter familiar only to those who regularly use or
deal in the substance, who are engaged in enforcing the laws against it, or
who have developed an acute ability to assess the weight of objects down to
the ounce. The average juror does not fall into any of these categories.”
Id. We agree.
This is not to say there are no circumstances under which a jury could
reasonably conclude, based on in-court observation, that certain drugs or
controlled substances satisfy a weight requirement. Rather, we hold that
in order to prove the element of weight of drugs or controlled substances,
the State must either offer evidence of its actual, measured weight or
demonstrate that the quantity of the drugs or controlled substances is so
large as to permit a reasonable inference that the element of weight has
been established. See id.
The record shows that the methamphetamine seized from the car was
submitted to the Indiana State Police Laboratory for analysis. The written
report, which was stipulated into evidence, shows a combined weight of
112.08 grams.[2] For reasons not apparent from the record or explained by
the State, the methamphetamine seized from the residence was not submitted
to the Laboratory. The only thing the record tells us about the quantity
of the drugs seized from the residence is found in the following exchange:
[Deputy Prosecutor]: I think I already asked you this but to
clarify it, other than the methamphetamine found on Juliet
Whiteley . . . and Roger Ferguson . . . [and] the
methamphetamine found [in the bedroom dresser drawer], was there
any other methamphetamine found in Shenandoah Drive 1216 on
September the 16th?
[Officer Harris]: Not to my knowledge.
[Deputy Prosecutor]: Well let me ask you this, was there any
significant amount of methamphetamine found inside 1216 as - -
[Officer Harris]: No.
[Deputy Prosecutor]: - - compared to the - - to the hundred and
twelve grams - -
[Officer Harris]: No, nothing close to that.
[Deputy Prosecutor]: - - found in the vehicle that Ritchie
Halsema was driving with Frank Halsema?
Appellant’s App. at 247-48.
The State introduced into evidence eight exhibits of clear plastic
baggies identified as containing methamphetamine. Some of the exhibits
contained multiple smaller baggies of methamphetamine. Included in the
eight exhibits was Exhibit # 30, the methamphetamine seized from the
bedroom dresser drawer. It is not among the exhibits containing multiple
baggies. Although the laboratory marked and labeled the individually
packaged drugs, ranging in weight from less than .01 grams to 55.63 grams,
see supra, n.2, the State made no effort to correlate the laboratory
results with the trial exhibits. Further, the record provides no
description of the drugs other than “methamphetamine in a baggie.” As a
result, there is no reference point to determine whether the
methamphetamine seized from the bedroom dresser drawer is similar in size,
weight or density to the individually packaged methamphetamine analyzed and
weighed by the Laboratory.
Seizing on an observation made by the Court of Appeals in Frank
Halsema’s case the State for the first time now emphasizes certain
testimony given by Juliet Whiteley. According to Whiteley, the night
before the arrest the Halsemas were present at her home “cuttin[g] up
crystal meth and they were cuttin[g] up bags puttin[g] it in bags and
wrappin[g] ties around it.” Appellant’s App. at 289. Whiteley testified
that the methamphetamine was a “chunk about the size of a charcoal.” Id.
at 292. According to the State this testimony supports a conviction of
possession of more than three grams of methamphetamine within 1000 feet of
a school. Br. in Support of Pet. to Transfer at 5.
First, it is not at all clear to us just exactly what role the
testimony about this alleged charcoal-sized chunk of drugs played in the
State’s theory of this case. The State made no mention of it in its
closing argument to the jury, nor did it mention the testimony in its brief
before the Court of Appeals. In any event, regardless of whatever purposes
this testimony may have served, only the methamphetamine seized from the
bedroom dresser drawer provided the basis for the charge that the Halsemas
possessed at least three grams of methamphetamine within 1000 feet of a
school. And the record is clear that in comparison to the drugs found in
the car, the amount of drugs found at the residence, including the drugs
seized from Whiteley and Ferguson, was not “significant.”
At the end of the day the record in this case simply does not support
the view that the quantity of methamphetamine seized from the bedroom
dresser drawer was so large that the jury could infer that it weighed at
least three grams. Accordingly, we reverse the Halsemas’ convictions for
possession of methamphetamine as Class A felonies.
In the case of Frank Halsema we remand this cause to the trial court
with instructions to impose sentence for possession of methamphetamine
within 1000 feet of a school as a Class B felony.[3] See I.C. § 35-48-4-
6(b)(2) (West Supp. 2004) (possession of less than three grams within 1000
feet of school property is a Class B felony). However, as explained in
more detail below, remand for imposition of a lesser-class offense is not
appropriate in the case of Ritchie Halsema.
Before the Court of Appeals, Ritchie Halsema argued that the trial
court erred by admitting into evidence over his objection the
methamphetamine seized from the residence.[4] More specifically, Ritchie
Halsema complained that the seizure was the product of Whiteley’s consent
to search, which he contended Whiteley had no authority to give. Because
the Court of Appeals reversed the conviction on other grounds, it did not
reach this issue. We do so now.
Generally, a search warrant is a prerequisite to a constitutionally
proper search and seizure. Perry v. State, 638 N.E.2d 1236, 1240 (Ind.
1994). In cases involving a warrantless search the State bears the burden
of proving an exception to the warrant requirement. Short v. State, 443
N.E.2d 298, 303 (Ind. 1982). A valid consent is such an exception. Joyner
v. State, 736 N.E.2d 232, 242 (Ind. 2000). This includes consent given by
a third party having common authority or a sufficient relationship to the
premises to be searched. Perry, 638 N.E.2d at 1240-41.
In Krise v. State, 746 N.E.2d 957 (Ind. 2001) the defendant shared a
house with a roommate. The roommate consented to a general search of the
house, which ultimately led to the discovery and search of the defendant’s
purse. That search, in turn, revealed marijuana and a white powdery
substance later identified as methamphetamine. After a careful and
exhaustive review of what we characterized as the “twists and turns of
Fourth Amendment law” with respect to warrantless searches, id. at 961,
this Court ultimately reversed the defendant’s conviction of possession of
a controlled substance within 1000 feet of a public park on the ground that
the defendant’s roommate lacked authority to consent to a warrantless
search of the defendant’s purse. We held “the inspection of closed
containers that normally hold highly personal items requires the consent of
the owner or a third party who has authority—actual or apparent—to give
consent to the search of the container itself.” Id. at 969. Acknowledging
that we had previously addressed cases involving third-party consent
searches of a shared home and its contents, we noted, “none of these cases
dealt with a third-party’s authority to consent to search something like a
purse, i.e., a closed container that normally holds highly personal items,
located within the home.” Id. at 968 (emphasis in original).
The dresser drawer in this case is analogous to the purse in Krise—a
closed container normally holding highly personal items. The record is
clear that Ritchie Halsema did not give officers consent to search the
drawer. Thus the question is whether Whiteley, as a third party, had the
actual or apparent authority to give consent. Actual authority “requires a
showing that there is a sufficient relationship to or ‘mutual use of the
property by persons generally having joint access or control for most
purposes.’” Id. at 967 (internal quotation omitted). As for apparent
authority, “a search is lawful if the facts available to the officer at the
time would ‘warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises.’” Id.
In this case, in a hearing outside the presence of the jury for the
express purpose of determining what authority if any Whiteley had to give
consent, the following exchange occurred:
[Defense Counsel]: [I]t’s my understanding that according to
your testimony that Ritch had been staying at your house the
past several days?
[Whiteley]: Correct.
[Defense Counsel]: Is that correct?
[Whiteley]: Yes.
[Defense Counsel]: Okay. And up in the – he slept actually in
your bedroom?
[Whiteley]: Yes.
[Defense Counsel]: Okay. And in your bedroom there was a
dresser, correct?
[Whiteley]: Correct.
[Defense Counsel]: Okay. And that dresser you gave them – you
cleared out some drawers for him and said these are your
drawers?
[Whiteley]: Yes, I did.
[Defense Counsel]: And those drawers that were gonna be for him
exclusively?
[Whiteley]: Yes.
[Defense Counsel]: I think that you also – you testified it was
– you didn’t know what he kept in there, you didn’t go in those
drawers, that those were his?
[Whiteley]: That’s correct.
[Defense Counsel]: When the police officers came over to search
that night, you told them those were Ritchie’s drawers?
[Whiteley]: Yes.
[Defense Counsel]: Okay. And the ones there in the dresser in
the bedroom, those are Ritchie’s?
[Whiteley]: Yes.
Appellant’s App. at 220-21. Because Ritchie Halsema enjoyed the exclusive
use of at least one of the dresser drawers in Whiteley’s bedroom and
because Whiteley specifically advised the officers of that fact, Whiteley
did not have actual authority to consent to a search of the drawer where
the methamphetamine was found, nor could an officer reasonably believe that
she had such authority. In sum, the record here shows that Whiteley had
neither the apparent nor actual authority to consent to a search of the
dresser drawer. Thus the warrantless search of the drawer without Ritchie
Halsema’s consent violated his Fourth Amendment right against unreasonable
search and seizure. The trial court erred by admitting the seized drugs
into evidence. Accordingly Ritchie Halsema’s conviction for possession of
methamphetamine within 1000 feet of a school must be vacated. Ritchie
Halsema’s remaining convictions and sentences, including his forty-year
sentence for dealing in methamphetamine, a Class A felony, are affirmed.
Conclusion
In order to prove the element of weight of drugs or controlled
substances, the State must either offer evidence of its actual, measured
weight or demonstrate that the quantity of drugs or controlled substances
is so large as to permit a reasonable inference that the element of weight
has been established. In this case the State failed to carry its burden.
As a result, the Halsemas’ convictions for possession of methamphetamine
within 1000 feet of a school as Class A felonies are reversed. In Frank
Halsema’s case we remand this cause to the trial court with instruction to
impose sentence as a Class B felony. In Ritchie Halsema’s case we remand
with instructions to vacate the conviction.
Sullivan and Boehm, JJ., concur.
Shepard, C.J., concurs in part and dissents in part with separate opinion.
Dickson, J., joins.
Shepard, Chief Justice, concurring in part, and dissenting in part.
Juliet Whiteley gave the police permission to conduct a search of a
bureau she owned in her home -- a bureau she used and shared with Ritchie
Halsema. (As she might well have said, “I’ll use these drawers, Ritchie,
you use that one.”) As for whether her permission was good enough for
Fourth Amendment purposes, I am reminded of what Justice Thurgood Marshall
wrote when a defendant claimed his cousin could not give permission to
search the duffel bag they shared, each using separate compartments to
store their stuff: “We will not, however, engage in such metaphysical
subtleties in judging the efficacy of [the cousin’s] consent.” Frazier v.
Cupp, 394 U.S. 731, 740 (1969). I think Ms. Whiteley’s consent was
sufficient, largely on the basis that a unanimous U.S. Supreme Court found
the cousin’s permission adequate.
An individual’s consent to a search of his or her residence is
effective for searches of the common areas but not always for searches of
closed objects inside the home. Consent to search a container is effective
only when given by one with "common authority over or other sufficient
relationship to the premises or effects sought to be inspected." United
States v. Matlock, 415 U.S. 164, 171 (1974). See also United States v.
Karo, 468 U.S. 705, 725 (1984); Krise v. State, 746 N.E.2d 957, 967 (Ind.
2001). Common authority rests “on mutual use of the property by persons
generally having joint access or control for most purposes. . .” Matlock,
415 U.S. at 171, n.7.
Juliet Whiteley enjoyed use, access, and control of the dresser in the
bedroom, and she thus had actual authority to consent to a search of the
dresser. Whiteley was the sole lessee of the residence in which the
dresser drawer containing Ritchie’s methamphetamine sat. Prior to the
search, Ritchie was merely a guest of five to seven days. He stored his
belongings in the top dresser drawer in Whiteley’s bedroom, which is also
where he slept.
Whiteley had the right to eject Ritchie and his belongings, and retain
the dresser, at a moment’s notice. Whiteley continued to use the dresser
and store her belongings in other drawers. Her right to remove Ritchie’s
belongings from the top drawer did not cease upon granting him use of it.
When Ritchie decided to store his methamphetamine in a shared dresser, he
assumed the risk that Whiteley would allow someone else to look inside.
Matlock, 415 U.S. at 171, n.7.
Our decision in Krise does not mandate suppressing Ritchie’s
methamphetamine. The purse in Krise and the dresser in this case are both
closed containers normally holding highly personal items. But the type of
container searched is relevant in a determination of whether there was a
reasonable expectation of privacy in the container, see United States v.
Jacobsen, 466 U.S. 109, 120 n.17 (1984), and also whether a third party had
apparent authority to consent to a search. See United States v. Basinski,
226 F.3d 829, 834 (7th Cir. 2000). The relevant inquiry here is whether
the third party giving consent to the search had actual authority to do so.
The purse searched in Krise quite obviously belonged to a female, and
the male roommate who consented to the search never had mutual use, joint
access to, or control over the purse. We had little trouble concluding the
male roommate had no actual authority over a purse he did not use, access,
or control. Krise, 746 N.E.2d at 971. Our conclusion in Krise flows from
facts about ownership of the container that, if anything, suggest that the
trial court got it right in the present case.
I thus join the Court’s decision concerning Frank Halsema, but
dissent from the decision to vacate Ritchie Halsema’s conviction for
possession of methamphetamine.
Dickson, J., joins.
-----------------------
[1] Frank Halsema also contends that because the identity of the drugs was
not “scientifically determined” his conviction for possession of
methamphetamine within 1000 feet of school property cannot be sustained.
Br. of Appellant at 12. The identity of a drug can be proven by
circumstantial evidence. Clifton v. State, 499 N.E.2d 256, 258 (Ind.
1986). In the absence of expert testimony based on chemical analysis, this
may include the “testimony of someone sufficiently experienced with the
drug indicating that the substance was indeed a dangerous drug.” Slettvet
v. State, 258 Ind. 312, 280 N.E.2d 806, 808 (1972). Here, investigating
officer Troy Harris testified that he received special training concerning
the production, manufacture, and distribution of methamphetamine.
Appellant’s App. at 191-92. The officer explained that the drug is highly
addictive, that it can be produced from various household items, and he
described the various methods of ingestion. Id. When asked to identify
State’s Exhibit # 30, the contents of a plastic evidence bag containing
items retrieved from the bedroom dresser drawer, Officer Harris testified,
“it’s methamphetamine.” Appellant’s App. at 241-42. This testimony was
sufficient.
[2] State’s Exhibit # 13, the “Certificate of Analysis” from the Indiana
State Police Laboratory, lists twenty individually marked items identified
as containing methamphetamine. The items ranged in weight from less than
.01 grams to 55.63 grams. More specifically, eleven of the items were
identified as containing less than three grams; seven were identified as
containing slightly more than three grams; one was identified as containing
27.45 grams; and one was identified as containing 55.63 grams. See State’s
Ex. # 13.
[3] Because neither Frank nor Ritchie was present at the residence when the
drugs were found, apparently the State pursued this charge under the theory
of constructive possession. A defendant is in constructive possession of
drugs when the State shows that the defendant has both (i) the intent to
maintain dominion and control over the drugs and (ii) the capability to
maintain dominion and control over the drugs. Gee v. State, 810 N.E.2d
338, 340 (Ind. 2004). Neither defendant makes a claim challenging this
aspect of his conviction for possession of methamphetamine within 1000 feet
of a school. We therefore do not address this issue and express no opinion
on its merits.
[4] The record reveals that Frank Halsema specifically responded with “no
objection” to the admission of the evidence. Appellant’s App. at 244.