Schlabach v. State
Decision Date | 15 February 1984 |
Docket Number | No. 3-783A217,3-783A217 |
Citation | 459 N.E.2d 740 |
Parties | William E. SCHLABACH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
Thomas A. Murto, Murto & Holbrook, Goshen, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant William Schlabach was tried by jury on one count of delivery of a controlled substance, IND.CODE Sec. 35-48-4-2, a Class B felony. The jury returned a guilty verdict, and the court sentenced Schlabach to ten years incarceration. Schlabach now appeals from the judgment of conviction.
At trial, Schlabach raised the issue of entrapment as an affirmative defense. He now contends that the State failed to prove beyond a reasonable doubt that he was predisposed to commit the offense charged.
The Indiana Legislature has chosen to recognize entrapment as a defense. IND.CODE Sec. 35-41-3-9 provides:
"Sec. 9. (a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment."
The burden of proof in entrapment cases was comprehensively covered in Silva v. State, (1980) Ind.App., 410 N.E.2d 1342. The Court stated that:
As recently stated by the Supreme Court of Indiana:
Hudgins v. State, (1983) Ind., 443 N.E.2d 830, at 832.
A number of circumstances may be considered by the jury on the issue of predisposition in a drug case. These include: familiarity with drug terminology; possession of controlled substances as contraband; knowledge of prices and quantities of controlled substances; familiarity with a source of supply; multiple sales to an officer; and willingness to make future sales. Stewart v. State, (1979) 271 Ind. 169, 390 N.E.2d 1018; Wilhelm v. State, (1983) Ind.App., 446 N.E.2d 621.
The record in the case at bar contains sufficient evidence from which the jury could find Schlabach predisposed to sell controlled substances. On January 21, 1982, an undercover policeman met Schlabach at the First Base Tavern in Goshen, Indiana. When asked whether he had any marijuana, Schlabach responded that he had an ounce, but it was of poor quality. When asked whether he had anything else to sell, Schlabach replied that he could provide some "Mr. Magic" for $4.00 a hit. "Mr. Magic" is the street name for blotter LSD. Schlabach then procurred a packet from his car and sold it to the officer for $40. When analyzed, the substance was positively identified as LSD (lysergic acid diethylamide). Schlabach's familiarity with drug terminology, possession of LSD and marijuana, knowledge of prices and quantities, and apparent willingness to sell LSD all support the jury's determination that he was predisposed to engage in prohibited conduct. The State adequately rebutted the defense of entrapment.
Schlabach next contends that the trial court erred in not permitting his trial counsel to quote from Indiana entrapment cases during closing argument. This same argument was presented to the Supreme Court in Lax v. State, (1981) Ind., 414 N.E.2d 555. The Lax opinion is instructive in this regard and worth quoting at length:
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