Hardin v. State

• Decision Date: 30 September 1992
• Docket Number: No. 82A01-9204-CR-100,82A01-9204-CR-100
• Citation: 600 N.E.2d 947
• Parties: Derrick HARDIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 947

600 N.E.2d 947

Derrick HARDIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9204-CR-100.

Court of Appeals of Indiana First District.

Sept. 30, 1992.

Jeffery L. Lantz, Evansville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Derrick Hardin appeals his conviction of dealing in cocaine, a class B felony.

We affirm.

The sole issue raised in this appeal concerns the introduction of evidence of extrinsic offenses unrelated to the charged crime. In particular, over Hardin's objection, the State was permitted to offer evidence from each of its two witnesses that Hardin had attempted to facilitate a drug transaction between Sergeant Wilkerson and another individual about a month after the charged offense but the transaction never occurred, and also evidence from Sergeant Wilkerson's contact, Diahann Watson, that she knew to approach Hardin for cocaine because she had purchased cocaine from him in the past.

Much has been written about this topic by the appellate courts in recent days. Suffice it to say, evidence concerning crimes extrinsic to the one for which a defendant is on trial is generally inadmissible if its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes. Penley v. State (1987), Ind., 506 N.E.2d 806, 808. However, evidence of uncharged misconduct may often be admissible because it promotes a legitimate inference about some issue in the cause, notwithstanding its incidental revelation about the defendant's character. Id.

One such issue often in dispute is identity, one of the bases asserted by the State at trial and now on appeal for admission of the evidence of Hardin's involvement in the attempted transaction on May 17, 1990, a month after the charged offense. For evidence of an extrinsic offense to be admissible and relevant as proof of identity, the State must show that the similarities between the charged and extrinsic offenses are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person. The acts or methods employed must be so similar, unusual and distinctive as to earmark them as the acts of the accused. Penley, 506 N.E.2d at 809.

We cannot discern how the evidence of the aborted May 17, 1990, transaction had any tendency to prove Hardin's identity as the individual involved in the charged sale. Other than the fact that the charged offense involved the same three players, Hardin, Wilkerson, and Watson, there are no similarities in the method of sale. When the charged offense occurred, Watson approached Hardin in a parking lot, Hardin directed her to his companion, Al, Watson obtained some cocaine from Al in a car and returned to Wilkerson's car where she delivered the cocaine to Wilkerson. Wilkerson rejected it, claiming that he was tired of Watson's intervention to obtain a cut for herself, and ousted Watson from the car. Watson made such a fuss that to end the commotion, Hardin stepped forward and assured Watson that he would take care of him. The charged offense then occurred in Wilkerson's car between Wilkerson and Hardin, behind the tinted windows of Wilkerson's car. The evidence of the attempted May 17, 1990 transaction consisted of testimony that on that date, Hardin rode with Wilkerson and Watson to various locations in search of cocaine. Eventually, Wilkerson and Hardin ended up in a darkened apartment, Wilkerson became concerned for his safety, and he walked out without ever consummating a sale from Hardin or anyone else.

The State argues evidence of the defunct May 17, 1990 transaction was relevant to show the formulation of a preconceived plan which included both the charged and uncharged transactions. Evidence of drug purchases involving the accused which occur before the charged offense has been held to be proper to show a common scheme or plan to conduct a drug dealing business. See e.g. Clark v. State (1989), Ind., 536 N.E.2d 493; Bombe v. State (1988), Ind., 525 N.E.2d 336; Sweet v. State (1986), Ind., 498 N.E.2d 924; Manuel v. State (1977), 267 Ind. 436, 370 N.E.2d 904; Downer v. State (1982), Ind., 429 N.E.2d 953; and, Bartruff v. State (1988), Ind.App., 528 N.E.2d 110, trans. denied.

At best, the evidence of Hardin's involvement with Wilkerson on May 17, 1990, shows Hardin's willingness to assist Wilkerson in finding a source a month after the charged offense. But no source was ever located and no transaction occurred. Unlike the failed transaction in Sweet, which occurred between transactions with Sweet, the other evidence in the present case shows Wilkerson's inability to consummate a second transaction with Hardin despite repeated attempts. The evidence thus looks less like a common scheme or plan on the part of Hardin to deal cocaine, but more like a plan on the part of Wilkerson to engage Hardin in sales. We are therefore inclined to follow Street v. State (1991), Ind.App., 567 N.E.2d 1180, and conclude that the evidence of Hardin's desire to aid Wilkerson in obtaining cocaine does not establish a preconceived plan created by Hardin to deal in cocaine.

Lastly, the State argues that evidence of the search for a source was...