Grimm v. State

• Decision Date: 10 April 1978
• Docket Number: No. 976S322,976S322
• Citation: 374 N.E.2d 501,268 Ind. 145
• Parties: Gary GRIMM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 501

374 N.E.2d 501

268 Ind. 145

Gary GRIMM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 976S322.

Supreme Court of Indiana.

April 10, 1978.

William C. Erbecker, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by information in two counts for Unlawful Dealing in a Controlled Substance, Ind.Code § 35-24.1-4.1-1 (Burns 1975). Count I was for the illegal delivery of pentobarbital, and Count II was for the illegal delivery of methaqualone, both of which are Schedule II narcotics. After trial by jury, Defendant was convicted on Count I, and acquitted on Count II. He was sentenced to a term of twenty years imprisonment and was fined two thousand dollars. This direct appeal presents the following issues:

(1) Whether the evidence is sufficient to sustain the verdict.

(2) Whether the trial court erred by refusing to suppress evidence of a drug transaction, based upon Defendant's claim of entrapment.

(3) Whether the court erred by refusing defendant's motion for a continuance of the suppression hearing by reason of the absence of two subpoenaed witnesses.

(4) Whether inadmissible evidence was improperly brought before the jury, to Defendant's prejudice.

ISSUE I

The evidence most favorable to the State indicates that Marion County Deputy Sheriff Steven Neal, acting as an undercover agent, and David Dooley, a police informant, were at an Indianapolis night-spot when Dooley introduced Neal to the defendant. Dooley told Defendant that Neal was in the market for drugs, and inquired whether Defendant had any for sale. Defendant replied that he did, but that the drugs were at his residence.

Neal and Dooley met Defendant at his residence. Defendant took Neal into his bedroom and showed him the different drugs that he had in a container. Neal bought fourteen pills. Defendant represented that the two white tablets were qualudes, and that the twelve yellow capsules were "yellow jackets." Laboratory analysis disclosed that the white tablets contained methaqualone, two of the twelve yellow capsules contained pentobarbital, and the remainder contained methapyrilene, a non-controlled substance.

Ind.Code § 35-24.1-4.1-1 provides:

"(A) person is guilty of unlawful dealing in a controlled narcotic substance if he;

(1) knowingly manufactures or delivers a controlled substance, pure or adulterated, classified in schedule I or II which is a narcotic drug * * *."

When the sufficiency of the evidence is raised upon appeal, this Court will consider only the evidence which is favorable to sustain the judgment below, together with all reasonable inferences to be drawn therefrom. If the evidence is such that a reasonable trier of fact could find each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Baum v. State, (1976) Ind., 345 N.E.2d 831. It is not this Court's province to judge the relative weight of the evidence or the credibility of the witnesses. Rosell v. State, (1976) Ind., 352 N.E.2d 750.

The State presented probative evidence that Defendant delivered a substance to Deputy Neal, and that substance was found to be included in Schedule II. Neal testified that Defendant knew what the controlled substance was, and the sale reasonably appears to have been knowing and voluntary. This evidence is sufficient to sustain the verdict. Defendant has endeavored throughout the trial and the appeal briefs to persuade that he was the victim of an entrapment. We find nothing requiring such a conclusion.

ISSUES II & III

Defendant's claims of error under these assignments present nothing for review. Both are premised upon allegedly erroneous rulings relating to a pre-trial purported motion to suppress evidence, which was as follows:

"MOTION TO SUPPRESS

"Comes now the Defendant, GARY A. GRIMM, by and through his counsel, STIVERS & TABAK, and in support of his Motion to Suppress, alleges and says as follows:

"1. That the Defendant, GARY A. GRIMM, was the victim of entrapment.

"2. That certain of the state's witnesses are committing perjury.

"3. That none of the evidence introduced in Court against him, he did not have any knowledge of nor did he have in his possession.

"WHEREFORE, the Defendant, GARY A. GRIMM, by his Counsel, Stivers & Tabak, respectfully pray this Court to suppress the evidence in this case and for all further and proper relief in the premises."

The function of a motion to suppress is to challenge specific evidence believed to be inadmissible at trial by reason of having been obtained illegally. Knotts v. State, (1...