Opinion
No. 2-273A46.
Filed December 18, 1973.
APPEAL — Sufficiency of Evidence — Standard of Review. — The Court of Appeals can only review the evidence of probative value tending to prove every material fact essential to the conviction.
Appeal from convictions of Possession of Heroin and Sale of Heroin.
From the Criminal Court of Marion County, Division One, Robert J. Fink, Special Judge.
Affirmed by the Second District.
Harriette Bailey Conn, (Mrs.), Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellant.
Theodore L. Sendak, Attorney General, Larry C. Gossett, Deputy Attorney General, for appellee.
Appellant was charged in two counts: (1) Possession of Heroin; (2) Sale of Heroin. He was tried to a jury resulting in a verdict of guilty on both counts. No direct appeal was taken. This appeal is from a denial of post conviction relief.
The sole proposition argued is "that his conviction was based on insufficient evidence." That evidence consisted of the testimony of a drug addict who had been arrested in possession of a substance which he testified he purchased from appellant and the testimony of a policeman who arrested both the addict and the appellant and by means of a test, identified the substance taken from the addict as a narcotic. The whole argument is to the effect that this was not "positive and convincing proof that a sale of narcotic drugs had been consummated." This amounts to asking us to weigh the evidence and find it wanting in cogency and credibility. We can only review the evidence to determine whether there was some substantial evidence of probative value tending to prove every material fact essential to the conviction. That we have done and we find the evidence sufficient. It was the jury's sole province to decide whether to believe it. Fisher v. State (1973), 259 Ind. 633, 291 N.E.2d 76, 78, 34 Ind. Dec. 577, 580; Cravens v. State (1971), 257 Ind. 381, 275 N.E.2d 4, 6, 27 Ind. Dec. 584, 586.
Judgment affirmed.
Buchanan, P.J., and Sullivan, J., concur.
NOTE. — Reported at 304 N.E.2d 356.