The Indiana Lawyer on 08/08/2018 by Dave Stafford
A man who argued public policy should disfavor criminally charging people who have overdosed on heroin lost Wednesday, as the Indiana Court of Appeals affirmed his felony possession conviction.
Tavis Ray Crittendon raised those arguments and others in appealing his conviction after a bench trial in Kosciusko County. “Although Crittendon argues that there is a ‘public policy argument to be made against equating consumption . . . with possession’ because it discourages people from seeking medical assistance, public-policy arguments should be made to the General Assembly,” Chief Judge Nancy Vaidik wrote for the panel in Tavis Ray Crittendon v. State of Indiana, 18A-CR-206.
Crittendon was charged after his girlfriend found him unresponsive and with blue lips, which she recognized as signs of a heroin overdose. As medics responded and transported Crittendon to the hospital, a deputy told his girlfriend he wanted to “figure out exactly what [Crittendon] was on for his well-being.” The girlfriend admitted to purchasing heroin a day earlier, and she led a deputy to drugs in their house, some of which field-tested positive for heroin.
According to the record, when Crittendon was recovering at the hospital, he told a deputy, “I…slipped up. Did some, well what I thought was a little bit of coke, some heroin. Went to sleep. Woke up to the ambulance being there and my girlfriend freaking out.”
Judge Michael W. Reed found Crittendon guilty after he admitted to using heroin, saying “[h]e had to possess it to consume it.” The trial court rejected defense claims that Crittendon didn’t use heroin found in his bedroom, but rather from a different batch belonging to a friend.
The Court of Appeals affirmed Crittendon’s opinion, rejecting his argument on appeal that case law doesn’t support his conviction. “Crittendon contends that he cannot be convicted of possessing the heroin he admitted consuming. Crittendon concedes that ‘[c]ase law does exist to equate consumption with possession’ — that is, an Indiana Court of Appeals decision from 1974, Smith v. State, 161 Ind. App. 636, 316 N.E.2d 841 (1974), reh’g denied — but he claims that Smith is ‘no longer good law’ because ‘it has not been cited in any subsequent appellate cases,’” Vaidik wrote. “… Not so. This Court relied on Smith in 1991 in State v. Vorm, 570 N.E.2d 109 (Ind. Ct. App. 1991).”
Vorm cited Smith for holding that “evidence showing a person has a prohibited drug within his system is circumstantial evidence tending to show he was in possession of the drug prior to taking it.” Those cases also were cited as precedent to affirm a methamphetamine possession conviction in Smart v. State, 40 N.E.3d 963 (Ind. Ct. App. 2015), reh’g denied.
“Critically, Crittendon does not acknowledge either Vorm or Smart in his appellant’s brief. The State cites Smart in its appellee’s brief, and Crittendon did not file a reply brief,” the panel ruled. ‘Based on both Vormand Smart, we find that the evidence is sufficient to support Crittendon’s conviction for possession of a narcotic drug. That is, Crittendon admitted using heroin shortly before waking up to medics, and he showed clear signs of a heroin overdose.”
In a footnote, the appellate court that Crittendon had waived a claim on appeal of fatal variance between the charging information, which referenced heroin found in his bedroom, and the trial court judge’s finding that Crittendon had “possessed heroin at a gas station in Milford.”