Copeland v. State

Decision Date18 January 1982
Docket NumberNo. 1-481A138,1-481A138
Citation430 N.E.2d 393
PartiesBenjamin C. COPELAND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Benjamin C. Copeland (Copeland) appeals his conviction of dealing in a narcotic, Ind.Code 35-48-4-1. Copeland was found guilty of two counts of dealing in hydromorphine.

We affirm in part and reverse in part.

The facts most favorable to the State disclose that Copeland was contacted by a police informant, Nathanial Ussery (Ussery), who telephoned Copeland on November 13, 1978. Ussery called Copeland from the police department and requested to purchase dilaudids, a controlled substance, from Copeland. Copeland acknowledged that he had the drug. Ussery was then searched and given a body microphone. The police gave Ussery one hundred forty dollars to purchase the drugs and accompanied him to Copeland's residence. Once inside Copeland's house, Ussery exchanged the money for four pills. Ussery attempted to leave the house with the pills, but Copeland became suspicious of the person in the car and required Ussery to use them in his presence. At this point, an argument ensued and Copeland gave Ussery his money back in exchange for the drugs. Ussery stated he would come back alone and left.

Ussery met with police again on November 22, 1978. Ussery was searched, given a body microphone, and given money for the purchase. Ussery was accompanied by his girl friend for the purchase. Ussery again purchased four pills and was told he could not leave with the drugs. Ussery and his girl friend injected one pill each. Ussery hid the two remaining pills in his pocket and later turned these drugs over to the police. An expert witness for the State testified at trial that the pills, which had the trade name of dilaudid, contained hydromorphine.

Copeland argues on appeal that the evidence established entrapment, that there was insufficient evidence to prove the substance involved in the initial sale was hydromorphine, that the jury verdict amounted to an acquittal on count one, and that the trial court erred in refusing to give certain instructions tendered by Copeland.

Copeland contends that the evidence established entrapment as a matter of law. The elements of the defense of entrapment are contained in Ind.Code 35-41-3-9, which provides:

ENTRAPMENT.-(a) It is a defense that:

(1) The prohibited conduct of the person was the product of a law-enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and

(2) The person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

There is no doubt that the police, through their informant, participated in the criminal activity with Copeland. When there is evidence that a police officer or agent has participated in the sale of a controlled substance, the State must present evidence showing the defendant's predisposition to commit the criminal act. If the police merely provided the defendant an opportunity to commit the offense, he cannot rely on the defense of entrapment. The question of predisposition is a determination of the subjective intent of the accused and is a question for the trier of fact. Silva v. State, (1980) Ind.App., 410 N.E.2d 1342.

Upon review, this court neither weighs the evidence nor judges the credibility of witnesses. Rather, we look to the evidence most favorable to the State and all reasonable inferences too drawn therefrom. If there is evidence of probative value to support the conclusions of the trial court the conviction will not be overturned. Pettit v. State, (1972) 258 Ind. 409, 281 N.E.2d 807. With this standard in mind, there was sufficient evidence for the jury to conclude that Copeland was predisposed to commit the offense. The evidence established that Ussery telephoned Copeland, who informed him he had dilaudids to sell. At trial Copeland admitted to being a user of dilaudids. The State presented evidence that Copeland made two separate sales and brought two counts against Copeland. The first sale, count one, was rescinded because Copeland became suspicious. Copeland advised Ussery to return alone at another time. Ussery returned and consummated a sale. The second sale was the basis of count two. There was sufficient evidence for the jury to conclude that Copeland was predisposed to sell dilaudids.

The second issue presented by Copeland is whether there was sufficient evidence that the substance involved in count one was hydromorphine. The basis of count one was the initial sale of dilaudids. Since the sale was rescinded, there was no chemical analysis performed on the drugs. The question of sufficiency of the evidence in drug offenses was discussed in Slettvet v. State, 258 Ind. 312, 280 N.E.2d 806, where our supreme court stated:

However, when the drugs themselves are not placed into evidence and there is no expert testimony based on a chemical analysis, then there must be testimony based of someone sufficiently experienced with the drug indicating that the substance was indeed a dangerous drug.

258 Ind. 316, 280 N.E.2d 808.

The State qualified Ussery as an expert witness. Copeland argues that Ussery lacks the necessary qualifications to be an expert. The determination of whether a witness is qualified to testify as an expert is within the sound discretion of the trial court, whose ruling will not be disturbed absent an abuse of discretion. The qualifications of an expert may be established by practical experience as well as by formal training. Epps v. State, (1977) 267 Ind. 177, 369 N.E.2d 404.

The trial court did not abuse its discretion in allowing Ussery to testify as an expert witness. Indiana allows a drug addict to be qualified as an expert witness. Pettit v. State, supra. The State demonstrated that Ussery was a drug addict who had taken drugs for over thirteen years. While in prison, Ussery was involved in a drug prevention program where he studied various books and pamphlets. Ussery admitted that he previously used and sold dilaudids. Ussery testified that he had seen dilaudid pills "probably a million times". The State demonstrated that Ussery had sufficient lay experience to testify as an expert.

Copeland also argues that the evidence is insufficient for count one because Ussery merely identified the substance by sight and did not inject, inhale, or ingest the substance. The State correctly asserts that the identity of a drug can be proved by circumstantial evidence. The circumstantial evidence, to be sufficient to affirm a conviction, must consist of opinion testimony of someone sufficiently experienced with the drug who identifies the substance. Locklayer v. State, (1974) 162 Ind.App. 64, 317 N.E.2d 868. Although Ussery was a properly qualified expert, we remain unpersuaded that his testimony constituted sufficient evidence. Ussery's testimony did not illuminate how he identified the drug, that is, whether the pills had any distinguishing markings or any other method to determine that the substance was dilaudid. Our examination of the relevant case law has failed to reveal a conviction which was sustained by merely visual identification alone. In most of the cases, the opinion testimony was based upon physiological reactions to the drug as compared to prior experiences with drugs. 1 See, Slettvet v. State, supra; Pettit v. State, supra. This court is aware of the difficulties that law enforcement agencies confront with illegal drug traffic, but we believe that there must be some evidence establishing the distinguishable characteristics of the substance. To hold otherwise would seriously infringe upon the defendant's presumption of innocence and the standard of proof beyond a reasonable doubt. In Slettvet v. State, supra, our supreme court stated:

We take judicial notice of the frightening rise of illicit drug use occurring in this country which is rapidly approaching epidemic proportions. However, we cannot allow this fact to result in a lessening of the State's requirement of proving each element of the crime beyond a reasonable doubt for this requirement has long been a metaphysical cornerstone of our criminal law.

258 Ind. 318, 317 N.E.2d 874.

Accordingly, the conviction pursuant to count one is reversed....

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