Hineman v. State

• Decision Date: 22 February 1973
• Docket Number: No. 272A76,272A76
• Parties: Scott HINEMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 618

292 N.E.2d 618

155 Ind.App. 293

Scott HINEMAN, Appellant, v. STATE of Indiana, Appellee.

No. 272A76.

Court of Appeals of Indiana, Third District.

Feb. 22, 1973.

Rehearing Denied March 27, 1973.

William C. Erbecker, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

STATON, Judge.

STATEMENT ON THE APPEAL: Scott Hineman was charged by affidavit with unlawfully selling marijuana to Donald Grever. ¹ He was tried before a court and found guilty. The overruled motion to correct errors raises these issues on appeal:

A. Sufficiency of the evidence on identification.

B. Exclusion by the trial court of plea bargaining testimony offered by Scott Hineman.

C. Entrapment of the Defendant Scott Hineman.

D. 'Improper' sentencing standards used by the trial court.

In our opinion which follows, we examine each of the above issues and find no merit in any of them. We affirm the judgment of the trial court.

STATEMENT OF THE FACTS: Sergeant Donald Grever, a Marion County Deputy Sheriff, dressed in plainclothes, parked his unmarked car in front of 1436 Minturn Lane in Indianapolis, Indiana. He had received a report from his superiors that '. . . a lot of marijuana dealings . . .' had been going on at this address. There were four or five young people in the front yard. Two young men approached him and asked him if he wanted to speak to Scott Hineman. He said that he did. One of the young men went into the house. It was a dark 9:00 o'clock P.M. with only a porch light approximately fifty-five feet away when Scott Hineman walked up to Sergeant Grever who was leaning against the back of his automobile. Sergeant Grever asked Scott Hineman if there was a party going on here and said that he had heard that they were having a good party. They continued to converse with one another for a few minutes when Scott Hineman asked Sergeant Grever if he wanted to buy some marijuana. Sergeant Grever said yes; Scott Hineman turned and went back into his house. He returned with a bag of marijuana and two pills. Sergeant Grever paid $5.00 for the marijuana and $2.50 for the pills. Scott Hineman told Sergeant Grever that he usually 'hung around Holliday Park' and if he ever wanted to purchase anymore he '. . . could meet him in Holliday Park any afternoon.' The next day, October 22, 1970, in Holliday Park, Sergeant Grever saw Scott Hineman riding his motorcycle. Sergeant Grever testified:

'He stopped, approached my car, asked me if the grass was okay, or the marijuana was okay. I said, yes. He then asked me if I wanted to purchase some more. I said, yes. He said he would be back with some more after he went home to get it. At that time he went across the street and talked to four or five other subjects over there, got on his cycle and left, and he didn't come back.'

Scott Hineman was charged by affidavit and brought before the Marion County Juvenile Court where jurisdiction was waived to the Marion County Criminal Court. ²

On May 5, 1971, Scott Hineman waived formal arraignment and pleaded not guilty. Trial by jury was waived and trial by court was had on September 29, 1971. The trial court found Scott Hineman guilty. Sentencing was set for October 13, 1971 at 2:00 P.M. A pre-sentence report was ordered. It was dated October 12, 1971 and filed with the court on October 13, 1971. Scott Hineman was sentenced to the Indiana State Farm for one (1) year. His motion to correct errors and brief raise four issues set forth below.

STATEMENT OF THE ISSUES: The issues raised in Scott Hineman's Motion to Correct Errors and Brief on this appeal embrace these issues:

ISSUE A: Was there insufficient evidence of Scott Hineman's identification to sustain the conviction?

ISSUE B: Was there any evidence submitted which would establish the defense of entrapment?

ISSUE C: Did the trial court commit reversible error when it excluded plea bargaining testimony offered by Scott Hineman?

ISSUE D: Did the trial court commit reversible error in its use and consideration of the precommitment report at the time of sentencing?

Our discussion of these issues in the 'STATEMENT ON THE LAW' section of our opinion below will be categorized by the headings 'ISSUE A', 'ISSUE B', 'ISSUE C' and 'ISSUE D' as shown above.

STATEMENT ON THE LAW

ISSUE A: There are two evidentiary facets of Scott Hineman's 'insufficiency' argument. The first revolves around the first meeting between Sergeant Donald Grever, and the second revolves around a conflict in the evidence as to what Sergeant Donald Grever said in juvenile court regarding his identification of Scott Hineman.

Sergeant Donald Grever had two opportunities to observe Scott Hineman on October 21, 1971. The first was when Scott Hineman came out to the automobile of Sergeant Grever to speak with him, and the second was when Scott Hineman returned with the bag of marijuana and two pills. Although it was a dark night and the porch light was fifty-five feet away, Scott Hineman was within arm's reach of Sergeant Grever during both encounters. The third opportunity for observation of Scott Hineman by Sergeant Grever was in broad daylight at Holliday Park when Scott Hineman was on his motorcycle approaching Sergeant Grever's car. There was not only a very close encounter here which afforded excellent observation, but there was broad daylight which revealed all of Scott Hineman's facial characteristics.

The second facet of insufficiency concerns Sergeant Grever's testimony in Juvenile Court. There is a conflict in the testimony as to what was actually said by Sergeant Grever. Testimony was offered by Sergeant Grever, Scott Hineman and Scott Hineman's mother. On appeal, we must consider the evidence most favorable to the State. The testimony of Sergeant Grever on cross-examination on this particular conflict is as follows:

'Q. Well, didn't you just get through saying you testified in substance, or in general, that he didn't look like the subject that sold it to me? Didn't you say that out in Juvenile Court?

'A. He had his hair cut when he went to Juvenile Court. Before it was longer than what it is now. When I appeared at Juvenile Court he had his hair cut short approximately like mine. And the attorney asked me if he . . .

'Q. Mr. Barnhart you mean?

'A. Yes, sir. He asked me if there was any changes in the subject's appearance, and I said yes, sir, his hair is shorter than it was.

'Q. All right. Now then you are positive this is the young man that you accosted on October the twenty-first, 1970, right?

'A. Yes, he's the subject.'

We have carefully examined the testimony of Sergeant Grever and all attempts to destroy his testimony were unsuccessful. When the sufficiency of the evidence on the identification of Scott Hineman is raised on appeal, we will only consider that evidence most favorable to the State, together with all logical and reasonable inferences that may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706. We will not weigh the evidence nor determine the credibility of witnesses. Fuller v. State, supra; Rusher v. State (1971), Ind., 270 N.E.2d 748; and Potter v. State (1971), Ind., 274 N.E.2d 699.

We have carefully examined all of the testimony which is connected even remotely with Scott Hineman's identification. There is substantial evidence of probative value from which the trial court as the trier of facts could have reasonably inferred that Scott Hineman was guilty beyond a reasonable doubt. Fuller v. State, supra; Gibson v. State, supra.

ISSUE B: '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.' Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 821, 2 L.Ed.2d 848. Entrapment is a defense. ³ Its roots are deep in equity soil. The theoretical vehicle is estoppel. In Sorrells v. United States (1932), 287 U.S. 435, 445, 53 S.Ct. 210, 214, 77 L.Ed. 413, 418, the Supreme Court of the United States explained its operation:

'. . . When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.'

No evidence or inference therefrom suggests that Sergeant Grever implanted the criminal design of selling marijuana in the mind of Scott Hineman. Sergeant Grever testified that he had received reports from his superiors that '. . . a lot of marijuana dealings . . .' had been going on at this address. He did not ask of Hineman if he had any marijuana to sell. The record shows that Scott Hineman asked Sergeant Grever if he wanted to buy some marijuana. Scott Hineman has urged as his first defense at trial that he was not the person from whom Sergeant Grever purchased marijuana. His contention now that if he is the person that he was entrapped is totally without merit. This court stated in May v. State (1972), Ind.App., 289 N.E.2d 135, 138, in an opinion written by Chief Judge Hoffman that:

'. . . (W)here an accused already had the readiness and willingness to break the law, the fact that the police provide a favorable opportunity to commit a crime is not entrapment.'

We do not find any entrapment of Scott Hineman. We do not find any error.

ISSUE C: The trial judge sustained the State's objection to a question relating to plea bargaining negotiations which had transpired between Scott Hineman and the State prior to trial. To properly reflect the atmosphere in which the question was asked by Scott Hineman's defense counsel, it is necessary that we refer to the record. Mr. Dyer, the deputy prosecuting attorney representing the State, was preparing to conclude his cross-examination of Scott Hineman with these three questions:

'Q. Isn't it a...