Releford v. State, 2--174A29

• Docket Nº: No. 2--174A29
• Citation: 163 Ind.App. 534, 325 N.E.2d 214
• Case Date: April 01, 1975
• Court: Court of Appeals of Indiana

Page 214

325 N.E.2d 214 163 Ind.App. 534 William D. RELEFORD, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 2--174A29. Court of Appeals of Indiana, First District. April 1, 1975.

[163 Ind.App. 535]

Page 215

Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.

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

LOWDERMILK, Judge.

In a two count indictment filed February 16, 1971, defendant-appellant (Releford) was charged with possessing and selling heroin in violation of the 1935 Narcotic Act (as amended). After an initial plea of not guilty on March 24, 1971, Releford entered a plea of guilty to Count I of the indictment (possession) and requested a jury trial as to Count II (sale).

Trial was begun on November 15, 1971, and Releford was subsequently found guilty as charged. Judgment was entered on the verdict and Releford was sentenced under Count II to a prison term of not less than five years nor more than twenty years.

The facts most favorable to the State disclose that pursuant to information received

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from an informer, Officer Michael Grable of the Indianapolis Police Department made arrangements to make a buy of narcotics from Releford. Upon approaching Releford, Grable was asked if he was the one who wanted the 'stuff' and Releford entered Grable's car and directed Grable and the informant to an apartment. Grable [163 Ind.App. 536] supplied Releford with $10.00, Releford left the car in which they were riding, and returned several minutes later, stating that he had the 'stuff'. The trio together returned to Releford's home and as Releford left the vehicle Grable observed him place two yellow capsules on the seat of the car. Releford was at that time arrested for narcotics violation.

Releford's argument on appeal is stated as follows:

'Addressed to the argument that the court erred in refusing to grant the defendant's motion for a finding of not guilty both at the conclusion of the state's evidence and at the conclusion of defendant's evidence; and that the evidence presented at trial was not sufficient to sustain the jury's verdict; i.e. the decision of the jury was contrary to law.'

We note, however, that the greater portion of appellant's brief is dedicated to discussion of the defense of entrapment. However, for the reason stated below, we need not consider appellant's arguments pertaining to this defense.

The defense of entrapment is not made a part of any of Releford's pleadings; ¹ entrapment was not the basis for any objections to the admission of evidence; entrapment was not raised in a pre-trial motion to suppress evidence and this defense is not raised in any manner in the motion to correct errors. The only reference to the defense of entrapment is contained in Releford's only tendered instruction which was read to the jury without objection from the State. Inasmuch as Releford failed to adequately raise and preserve the issue of entrapment prior to his argument presented here on appeal we must conclude that no error has been preserved for our consideration. Ervin v. State (1972), Ind.App., 289 N.E.2d 131, 134; Ind.Rules of Procedure, Trial Rule 59(B) and Trial Rule 59(G), which...