Smith v. State, No. 10A04-9101-CR-4

Docket NºNo. 10A04-9101-CR-4
Citation586 N.E.2d 890
Case DateFebruary 17, 1992
CourtCourt of Appeals of Indiana

Page 890

586 N.E.2d 890
Robert Ragland SMITH, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 10A04-9101-CR-4.
Court of Appeals of Indiana,
Fourth District.
Feb. 17, 1992.

Page 891

Vicki L. Carmichael, Chief Public Defender, Jeffersonville, for appellant, defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Thirty-two year old Robert Ragland Smith had the misfortune of participating in the sale of a mixture of aspirin and flour, which was represented as cocaine, to an undercover police officer. He was convicted by a jury of Dealing in a Substance Represented to be a Controlled Substance, a Class D felony. 1 Smith was also found to be an habitual offender. He was sentenced to a term of eighteen months on the dealing charge and an additional twenty years on the habitual offender finding.

ISSUES

I. Whether there was sufficient evidence to support the conviction of Dealing in a Substance Represented to be a Controlled Substance.

II. Whether Smith was denied due process when the state recovered a previously misplaced tape recording of the dealing transaction thereby negating the defense of negligently misplaced evidence.

III. Whether Smith's habitual offender sentence was excessive and not supported (by the judge) by sufficient reasons.

We affirm.

FACTS

The evidence most favorable to the verdict shows that on January 3, 1990, Robert Smith and his accomplice Mabrin Davey sold a substance represented as cocaine to undercover Officer John Kahafer, Clark County Police Department. Kahafer had just finished another drug transaction and was still wearing a "body bug" transmitter, which permitted the undercover officer to communicate with other officers stationed nearby. A tape recording was made of the transmissions.

Kahafer was informed by a confidential informant that a man wanted to sell cocaine. The informant met Kahafer in a tavern and introduced him to Mabrin Davey. The informant then left the bar stating that he did not want to get further involved. Davey asked Kahafer, "What do you want to do?" R. 249. When Kahafer responded that it depended on the price, Davey replied, "I'll get you an eightball for 220." R. 249. Kahafer agreed and left with Davey.

Davey asked Kahafer to drive to a particular location. When they arrived, Davey left the car and walked between two buildings. He returned and informed Kahafer that "the stuff's not ready yet." R. 250-251. When Kahafer and Davey returned a short time later, Davey again left the car. He returned saying, "It's ready now", and instructed Kahafer to drive around the block. R. 252. Once there, Davey left the car and walked around the corner. He immediately returned, accompanied by defendant Smith. Smith walked to Kahafer's car, leaned down and asked what Kahafer wanted to do. Kahafer responded that he wanted "to do an eightball." R. 255. Smith stood and said to Davey, "I'll deal with you, I don't want to deal with him [Kahafer]." R. 255. When Kahafer indicated he had no objection, Smith and Davey stepped a few feet away from Kahafer where Smith handed something to Davey. After the transfer, Kahafer testified he heard Smith ask Davey, "How's the money going to go on this?" R. 257. Davey responded, "200 for you and 20 for me for setting up the deal." R. 257. Davey returned to Kahafer who gave him $220 and Davey gave Kahafer a small plastic bag with white powder.

Page 892

After the exchange, other officers stationed in vehicles nearby came to the scene and arrested Smith and Davey. Kahafer stated the men were under arrest and grabbed Smith. Davey fled. Smith stated, "You all set me up, you want the other guy, not me." R. 263. Smith then informed the officers that the bag contained only flour and aspirin. A forensic chemist testified at trial that the powder was not a controlled substance and that it reacted to some of the tests in the same manner as aspirin.

Kahafer's transmissions via his body wire of the transaction were tape recorded by Officer Kramer in a nearby van. After the arrest, Kramer gave the tape to Kahafer who put it away to transcribe later. The tape was misplaced and was not available for either the defense or the State at the beginning of trial. Counsel for Smith sought to prohibit officers from mentioning the tape and its contents in a suppression hearing. Kahafer offered his belief that the tape was lost or misplaced. The trial court granted the defense motion and ruled that the officers could testify that a tape had been made, but they could not testify to what the tape would reveal if found.

After the State presented its case-in-chief, the tape was discovered on a desk in the police department's property room. When the State requested permission to reopen its case-in-chief to admit the tape, Smith's defense counsel objected for several reasons: 1) defense counsel had been advised before trial that a diligent search for the tape had not been productive; 2) the tape was inadmissible due to its poor quality and irrelevant passages; and 3) the evidence on the tape was cumulative. After hearing the poor quality of the tape and finding it contained totally irrelevant passages, the court denied the State's motion to reopen its case.

I. SUFFICIENCY OF THE EVIDENCE

Smith claims that the State did not prove beyond a reasonable doubt that he knowingly and intentionally delivered the substance.

Ind.Code 35-48-4-4.5 states, in pertinent part:

"(a) A person who knowingly or intentionally delivers or finances the delivery of any substance, other than a controlled substance or a drug for which a prescription is required under federal or state law, that:

(1) is expressly or impliedly represented to be a controlled substance;

(2) is distributed under circumstances that would lead a reasonable person to believe that the substance is a controlled substance; or

(3) by overall dosage unit appearance, including shape, color, size, markings, or lack of markings, taste, consistency, or any other identifying physical characteristic of the substance, would lead a reasonable person to believe the substance is a controlled substance;

commits dealing in a substance represented to be a controlled substance, a class D felony."

Smith acknowledges that when reviewing a claim of insufficient evidence we will 1) not weigh evidence nor judge the credibility of witnesses; 2) only consider that evidence and all reasonable inferences therefrom which support the verdict; and 3) affirm the judgment if there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt. Taylor v. State (1987), Ind., 514 N.E.2d 290.

As noted earlier, the facts most favorable to the verdict reveal that Smith implicitly represented the substance to be a controlled substance--cocaine. Smith approached Officer Kahafer and asked him what he "wanted to do". (R. 254). Kahafer replied that he wanted to do an eight ball, which is slang for an eighth of an ounce of cocaine. Smith then stood and told Davey that he would deal with Davey but not with Kahafer. Smith and Davey stepped a few feet away where Smith handed something to Davey. Smith asked Davey about the money. Davey told Smith that Smith would get $200 and that he would get $20 for setting up the deal. Kahafer

Page 893

gave Davey $220 and Davey handed him a small bag which contained white powder. Additionally, after his arrest, Smith told the officers that there was only flour and aspirin in the bag.

Smith cites Pryor v. State (1973), 260 Ind. 408, 296 N.E.2d 125, to support his assertion that the evidence is insufficient to show that he was involved in the delivery of the substance. Pryor stood by while others sold an undercover officer a substance represented to be marijuana. Pryor's sole involvement in the transaction was his statement to the undercover officer that the substance was "good weed". Our supreme court states:

"We do not think that a bystander commenting upon the quality of goods offered for sale, without performing any further actions or making any further statements at the time, is making an offer under the statute."

Id. at 413, 296 N.E.2d 125 at 127. Pryor is factually distinguishable. Smith's involvement in the transaction is much greater than Pryor's. He was obviously not just a bystander but, rather, an active participant.

Moreover, we agree with the State's argument that even if the evidence did not show that Smith transferred the bag containing the white powder to Davey, Smith would still be criminally responsible because the evidence shows that he was acting in concert with Davey. See Spurlock v. State (1987),...

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3 practice notes
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...process under the Fourteenth Amendment and the Ind. Const. art. I, § 12. Lee v. State, 545 N.E.2d 1085, 1089 (Ind.1989); Smith v. State, 586 N.E.2d 890, 893 (Ind.Ct.App.1992). However, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Co......
  • Terry v. State, No. 49A02-0512-PC-1127.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 27, 2006
    ...the Fourteenth Amendment to the United States Constitution and Article One, Section Twelve of the Indiana Constitution.8 Smith v. State, 586 N.E.2d 890, 893 (Ind.Ct.App.1992). However, the State does not have "an undifferentiated and absolute duty to retain and preserve all material that mi......
  • South Band Tribune v. Elkhart Circuit Court, WSBT-T
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1998
    ...Due to this lack of cogent argument and citation to authority, the Media has waived their Indiana constitutional claim. Smith v. State, 586 N.E.2d 890, 895 (Ind.Ct.App.1992); Ind.Appellate Rule 7 The Media argues that we should use the test in Nebraska Press. This argument is premised upon ......
3 cases
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...process under the Fourteenth Amendment and the Ind. Const. art. I, § 12. Lee v. State, 545 N.E.2d 1085, 1089 (Ind.1989); Smith v. State, 586 N.E.2d 890, 893 (Ind.Ct.App.1992). However, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Co......
  • Terry v. State, No. 49A02-0512-PC-1127.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 27, 2006
    ...the Fourteenth Amendment to the United States Constitution and Article One, Section Twelve of the Indiana Constitution.8 Smith v. State, 586 N.E.2d 890, 893 (Ind.Ct.App.1992). However, the State does not have "an undifferentiated and absolute duty to retain and preserve all material that mi......
  • South Band Tribune v. Elkhart Circuit Court, WSBT-T
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1998
    ...Due to this lack of cogent argument and citation to authority, the Media has waived their Indiana constitutional claim. Smith v. State, 586 N.E.2d 890, 895 (Ind.Ct.App.1992); Ind.Appellate Rule 7 The Media argues that we should use the test in Nebraska Press. This argument is premised upon ......

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