Voirol v. State

• Decision Date: 26 November 1980
• Docket Number: No. 2-580A135,2-580A135
• Citation: 412 N.E.2d 861
• Parties: Ron VOIROL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 861

412 N.E.2d 861

Ron VOIROL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-580A135.

Court of Appeals of Indiana, Fourth District.

Nov. 26, 1980.

Howard S. Grimm, Jr. and John F. Surbeck, Jr., Grimm & Grimm, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Appellant-defendant Ron Voirol was convicted of delivery of a controlled substance. His appeal urges that he was entrapped as a matter of law (insufficient evidence of predisposition) and that the trial court erred in instructing the jury. Because we reverse, we reach only the first of these issues.

Indiana has in effect a statute codifying the common law of entrapment. Ind.Code 35-41-3-9 provides

(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.

When there is evidence that a police officer or his agent has participated in the buying of a controlled substance the State must present evidence showing the accused's predisposition to commit the criminal act in order to show that the act was not solely the idea of the police. The accused cannot rely on the defense of entrapment if the police merely afford him the opportunity to commit the crime. Silva v. State, (1980) Ind.App., 410 N.E.2d 1342 (1980). The question of predisposition is one of subjective intent and is for the trier of fact. Stewart v. State, (1979) Ind., 390 N.E.2d 1018; Silva v. State, supra; Stayton v. State, (1980) Ind.App., 400 N.E.2d 784. When reviewing the sufficiency of the evidence to support a finding of predisposition, the standard of review is the same as that for any other sufficiency claim. Silva, supra. We will neither weigh the evidence nor judge the credibility of the witnesses. Rather we look to the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom. If there is evidence of probative value to support the conclusion of the trier of fact, the conviction will not be set aside.

There is no question here but that a police officer participated in the purchase of a controlled substance. Therefore, the predisposition issue is the central issue of the case. Voirol, after discussing the participation of the police officer, argues regarding predisposition as follows:

The State produced no evidence of any prior conviction or any prior dealing or trafficking on the part of Voirol.

There being no evidence of any predisposition to commit the crime alleged on the part of Voirol, the conviction herein requires reversal.

Appellant's brief, p. 12. The State argues on appeal that there was sufficient evidence to find predisposition. They contend that circumstantial evidence is sufficient to establish predisposition and that several circumstances are present in this case.

Circumstantial evidence may be sufficient to establish predisposition. Stayton v. State, supra. Circumstances which have been held germane to inferring predisposition are many. Evidence of events at the time of sale alone may be sufficient. Silva v. State, supra. Evidence of defendant's ability to obtain a supply in a few minutes, several different schemes to accomplish the sale, multiple sales to officers and a larger supply of contraband than had been requested are circumstances which have been held sufficient. Hutcherson v. State, (1978) Ind., 380 N.E.2d 1219. Also, possession of a large supply has been held to be a circumstance which will support an inference of intent. Payne v. State, (1976) 168 Ind.App. 394, 343 N.E.2d 325, 338 (concurring opinion of Garrard, J. in which Hoffman, J. also concurs). Knowledge of prices and sources of supply in the criminal market, possession of apparatus for manufacture, conduct evincing a willingness to engage in future transactions and an eagerness in the present sale are circumstances relevant to defendant's subjective intent. Payne v. State, supra. Evidence of prior sales is relevant in determining intent. Whitham v. State, (1977) Ind.App., 362 N.E.2d 486.

In our case the evidence reveals that an Indiana State Police detective was working undercover in the Decatur, Indiana Adams County area. He had been in the vicinity about two weeks. On the particular occasion in question, the detective was seated in the passenger seat of his informant's car when defendant pulled his car alongside. This was the first time the detective had ever seen defendant. The informant asked defendant if he had any drugs in his possession. Defendant answered that he did. The detective asked if defendant would take $2 each for 50 hits. Defendant responded that he did not know whether he had 50, but he would take $2 each for what he had. At the informant's suggestion they moved over behind a gas station because there was a lot of traffic on the street. The detective left the informant's car and went to the defendant's car where the tablets were being counted. After consummation of the transaction, the detective asked defendant if he had any left. Defendant said he had eleven tablets left. Defen...