Maynard v. State
| Decision Date | 07 September 1977 |
| Docket Number | No. 3-276A34,3-276A34 |
| Citation | 174 Ind.App. 202,367 N.E.2d 5 |
| Parties | Darrell A. MAYNARD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
A. Martin Katz, Katz & Brenman, Merrillville, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
The trial court found Darrell A. Maynard guilty of Delivery of a Controlled Substance. 1 Pursuant to the Minor Sentencing Act, 2 Maynard was sentenced to the care, custody and control of the Superintendent of the Indiana Diagnostic Center for a period of not less than one (1) nor more than ten (10) years. In his appeal to this Court, Maynard raises the following issues:
(1) Was he entrapped?
(2) Was the trial court correct in its determination of the applicable sentencing statute?
We affirm the conviction of Maynard and remand for sentencing under the appropriate statute.
William Michalek, a police officer, and a confidential informant went to Maynard's house trailer to purchase marijuana. When Maynard asked Michalek how much he wanted, he replied that he would like to buy a "lid" or ounce. Maynard told him that this amount would cost twenty-five dollars. Michalek gave Maynard the twenty-five dollars. Maynard left the trailer immediately to obtain the marijuana. After an elapse of forty-five minutes, Maynard returned to the trailer with a plastic bag containing one ounce of marijuana.
Michalek asked if Maynard could obtain marijuana regularly and Maynard replied that he could. Michalek further inquired as to whether Maynard could obtain larger quantities, to which Maynard responded affirmatively and asked how much Michalek wanted. Michalek indicated he was interested in a pound and asked what the price would be. Maynard said that a pound would cost $225. Maynard testified at trial that he had obtained marijuana for the confidential informant on at least one occasion prior to the August 7 transaction.
Maynard's first contention is that the State failed to meet its burden of proving that it had probable cause to suspect him of trafficking in narcotics prior to the August 7 transaction. Probable cause to suspect the accused in an entrapment case was formerly required in Indiana as a protection against potential overreaching by law enforcement officials. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. However, in Hardin v. State (1976), Ind., 358 N.E.2d 134, our Supreme Court overruled Walker to the extent that it required proof of probable cause to suspect in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further discussion of Maynard's first allegation of error.
Maynard next contends that the State failed to prove that he had the requisite independent intent to deliver a controlled substance. When entrapment is raised as a defense, our concern turns to whether the defendant had a sufficient propensity to commit the crime irrespective of police inducement. Davila, supra, at 286. The question of whether a defendant had a predisposition to commit a crime, as well as the question of whether the defendant was entrapped, are questions of fact. When these questions of fact are challenged, on appeal as not being supported by sufficient evidence, this Court will neither weigh the evidence nor resolve questions of credibility. Instead, we will review only that evidence most favorable to the State, together with all reasonable inferences which can be deducedtherefrom. When this review indicates substantial evidence of probative value to support the verdict, it will not be disturbed. Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 98.
Maynard testified that he had delivered marijuana to the confidential informant on at least one occasion prior to the August 7 transaction. When Officer Michalek offered twenty-five dollars for an ounce of marijuana Maynard was able to obtain the marijuana and return in forty-five minutes. He knew what the price of the marijuana would be before he even left to pick it up. He stated that he could obtain marijuana regularly and in larger amounts. He was even able to tell Michalek how much a pound of marijuana could cost.
Another factor is the level and extent of police involvement relating to the August 7 transaction. If the conduct of the police prior to the commission of the crime was very slight and if their conduct, as here, consisted of merely providing the...
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...of marijuana delivered with respect to each count was less than 30 grams. Under identical facts, the Court of Appeals in Maynard v. State, (1977) Ind.App., 367 N.E.2d 5, held that Maynard should have been sentenced under the amended statute. In so doing, it applied the logic of dicta from i......
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