ATTORNEY FOR APPELLANT
William F. Thoms, Jr.
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Yvonne M. Carter
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
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). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard Good, Judge
Cause No. 49F15-9910-DF-172952
ON PETITION FOR TRANSFER
February 2, 2001
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.
Vasquez appealed and the Court of Appeals reversed, holding that the evidence was
insufficient to support Vasquezs 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
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.
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 courts finding that
the substance contained toluene.
Vasquezs 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
The judgment of the trial court is affirmed
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Vasquez was also charged with residential entry, but his motion for a
judgment on the evidence on that count was granted.
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.