Ervin v. State

• Decision Date: 16 November 1972
• Docket Number: No. 372A132,372A132
• Parties: Lawrence W. ERVIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. . *
• Court: Indiana Appellate Court

Page 131

289 N.E.2d 131

154 Ind.App. 89

Lawrence W. ERVIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 372A132.

Court of Appeals of Indiana, Third District. ^*

Nov. 16, 1972.

Leo J. Lamberson, South Bend, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

In this appeal the following issues are presented for determination by this court: 1) whether the conviction of the defendant is supported by sufficient probative evidence; 2) whether the defendant was a victim of entrapment; 3) whether probable cause existed for the arrest of the defendant; and 4) whether the defendant was denied a fair trial because the trial court denied him the opportunity to argue before the jury and read to the jury 'the entrapment case.'

The defendant herein was charged by affidavit in two counts for the sale and possession of heroin. Trial was to a jury which returned its verdicts finding the defendant guilty of the sale of a narcotic drug, to-wit: heroin, as charged in Count I of the affidavit; and guilty of possession of a narcotic drug, to-wit: heroin, as charged in Count II of the affidavit. Judgment was entered on the verdicts of the jury. On Count I of the affidavit the defendant was sentenced to the Indiana State Reformatory for a period of not less than five, nor more than twenty years. On Count II of the affidavit the defendant was sentenced to the Indiana State Reformatory for a period of not less than five, nor more than ten years. The sentences were to run concurrently. The timely motion to correct errors filed by the defendant was overruled and this appeal followed.

On appeal, the first issue is whether the conviction of the defendant is supported by sufficient evidence.

It is well settled that in reviewing the record before us for sufficiency of the evidence, we may not weigh the evidence nor judge the credibility of the witnesses. We may look only to the evidence most favorable to the finding of the trial court and the reasonable inferences flowing therefrom. The conviction will be affirmed if there is evidence of probative value from which the trier of fact could reasonably infer that defendant was guilty beyond a reasonable doubt. McKinley v. State (1972), Ind., 281 N.E.2d 91, 92; Harris v. State (1972), Ind., 281 N.E.2d 85, 86.

In the instant case, a review of the evidence in the record before us in support of the verdict of the jury reveals that on September 3, 1970, Timothy D. Carey was working for the South Bend Police Department as an undercover agent 'to infiltrate Leeper Park and buy drugs.' On that date, at about 9:00 P.M., Carey went to Leeper Park where he met another person, Mathew James Johnson, Jr., who also was known as 'Highnes.' Carey and Johnson left the park because 'Highnes wanted to buy some Heroin.' The two men went to 208 East Indiana in South Bend and at such address were five people, one of which was the defendant. Johnson asked defendant-Ervin if Ervin knew where they could get some heroin. Ervin said, 'Yes', and Ervin, Johnson and Carey left in Carey's car. They went to Ervin's apartment, and from there to the corner of Michigan and Sample Streets where Ervin got out and made a phone call. Ervin came back to the car and told Carey to drive east on Sample Street approximately six blocks, and then told him to turn south. After going about a block and a half, Ervin told Carey to stop the car. Carey testified that Ervin then said, 'Okay, give me the five dollars apiece and I will go get the Heroin.' Carey and Johnson each gave Ervin five dollars. Ervin 'got out of the car and left.' He returned after 'four or five minutes.' The three then went back to Ervin's apartment where Carey received a white capsule from Ervin. Ervin and Johnson then injected themselves from the contents of Johnson's capsule. The contents of the capsule given to Carey by defendant-Ervin were subsequently identified by the Bureau of Narcotic and Dangerous Drugs as 22% heroin hydrochloride.

We conclude that the foregoing facts provide sufficient probative evidence to support the conviction of defendant-Ervin.

It is appellant's contention that the testimony of Carey is prejudiced and racially biased, and that it lacks probative value. To repeat what we have heretofore stated, it is the function of the trial court, not this court on review, to weigh the evidence and judge the credibility of the witnesses. Where, as here, the judgment of the trial court is supported by substantial evidence of probative value from which it could reasonably be inferred that the defendant is guilty beyond a reasonable doubt, it will not be disturbed on appeal.

Another contention argued by defendant-appellant is that no probable cause existed for his arrest. Even though this contention is not contained in appellant's motion to correct errors, we will note in passing why this contention is without merit.

The affidavits filed prior to the probable cause hearing from which the arrest warrant resulted contained not only the allegations of the crimes charged, but also sufficient underlying facts and circumstances to allow a neutral and detached magistrate to draw his own conclusion as to the existence of probable cause. See: Kinnaird v. State (1968), 251 Ind. 506, 514, 242 N.E.2d 500, 506, 16 Ind.Dec. 250.

Furthermore, it has often been held that the legality of the arrest no relevancy, on appeal, where, as here, no...