Couch v. State

• Decision Date: 24 March 1980
• Docket Number: No. 3-579A135,3-579A135
• Citation: 402 N.E.2d 10
• Parties: Robert COUCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 10

402 N.E.2d 10

Robert COUCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-579A135.

Court of Appeals of Indiana, Third District.

March 24, 1980.

R. Brent Zook, Goshen, for appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Robert Couch was charged and convicted, by jury, of two counts of Theft, ¹ a Class D felony. Couch was sentenced, on Count I, to the Indiana Department of Correction for 4 years. This sentence was suspended and Couch was placed on Work Release for a period of 60 days, followed by placement on Reporting Probation for a period of 4 years. The court instructed that a judgment of conviction of a Class A misdemeanor be entered on Count II and that Couch be incarcerated for one day. It then ordered the sentence suspended.

On appeal, Couch raises one issue for our consideration. Was sufficient evidence introduced at trial to overcome his defense of entrapment?

We affirm.

The facts relevant to our disposition of the case indicate that police officers "Dave" Maurer and "Jim" Whitfield were active in an undercover "Tac Unit," a police squad organized to procure stolen property and narcotics from suspected criminals "on the street." On July 19, 1978, "Dave" first met Couch "hanging out" in the neighborhood known as Hillbilly Heaven. For the next five weeks, "Dave" and "Jim" made an effort to gain the friendship and confidence of Couch and his friends. Hoping to create the impression that they dealt in stolen goods, they offered cigarettes and whiskey to this group at very low prices. "Dave" puffed some marijuana and "Jim" simulated smoking it in acting their parts of being "common street people" who "would do anything for money." To further enhance this image, "Dave" and "Jim" carried large amounts of money in rolled-up bundles which they displayed at appropriate times. Officer "Dave" Maurer testified as to his riding around the countryside, while drinking alcohol, with Couch and some of his friends. During these drives, "Dave" attempted to create, through conversational gambits, the impression that he was engaged in covert, illegal activities.

On September 4, 1978, Couch called "Dave" to ask him if he were interested in buying a Corvette which he had just stolen. "Dave" met Couch at a designated place and paid him $100 for the automobile. On September 12, 1978, Couch again called "Dave". This time he had four stolen vans and a pick-up truck for sale. "Dave" again met him and purchased the stolen vehicles for $1,400.00.

On appeal, Couch contends that it is impossible to conclude that he was predisposed to commit the crimes of theft due to the substantial police involvement in the undercover operation. He argues that he was entrapped by the police and that without the existence of this "sting" operation, he would not have committed the crimes. We disagree.

The defendant in Whithan v. State (1977), Ind.App., 362 N.E.2d 486, raised much the same issue as has Couch. In finding the defense of entrapment inapplicable there, the Whithan Court examined the two approaches to the use of the entrapment defense. One view is subjective in nature and focuses upon the conduct and propensities of the particular defendant in each case. Thus, if the defendant had the predisposition to commit the crime or if he had originated the criminal design, there has been no entrapment regardless of the nature and extent of the government's participation. In the alternative view, the emphasis is upon whether the police conduct in the particular case is likely to have instigated or created the criminal offense. Whithan, supra. The Whithan Court notes that the subjective view has been expressly adopted by Indiana Courts. Hardin v. State (1976), 265 Ind. 635, 358 N.E.2d 134; Whithan, supra. This is not to say, however, that any type of police activity, in this circumstance, is permissible. In Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed. 848, the United States Supreme Court grappled with the limits of undercover police operations as they relate to the apprehension of criminals. It said:

"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' (Sorrells v. United States (1932)), 287 U.S. (435) at page 442, 53 S.Ct. (210) at page 212 (, 77 L.Ed. 413). Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. . . .

"However, the fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials (Emphasis supplied.) . . . To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. . . ."

356 U.S. at 372, 78 S.Ct. at 820-821.

The defense of entrapment exists when the defendant has been hired or induced by a government agency to commit a crime which he had no predisposition to commit. Stewart v. State (1979), Ind., 390 N.E.2d 1018. If the criminal thought originates with the defendant, there is no entrapment. Hutcherson v. State (1978), Ind., 380 N.E.2d 1219. Presentment of an opportunity by an undercover police agent to sell stolen goods does not constitute entrapment. Williams v. State (1978), Ind.App., 383 N.E.2d 444. The questions of whether the defendant was predisposed to commit a crime and whether he was entrapped are questions for the finder of fact. Maynard v. State (1977), Ind.App., 367 N.E.2d 5. When these questions are challenged on appeal as not being supported by sufficient evidence, this Court will neither resolve questions of credibility of the witnesses nor weigh the evidence. Instead, we will limit our review to that evidence most favorable to the State and all the reasonable inferences drawn therefrom. When there is substantial evidence of probative value to support the verdict, it will not be set aside. Maynard, supra.

In the case at bar, the evidence reveals that the police officers did indeed purchase stolen merchandise from the Hillbilly Heaven group. Th...