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02/05/88 VIRGIL L. ALLEN v. STATE INDIANA

Filed: February 5, 1988.

VIRGIL L. ALLEN, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



Appeal from Vanderburgh Circuit Court, The Honorable William H. Miller, Judge, Cause No. 5317.

Shepard, C.j., Pivarnik and Dickson, JJ., concur. DeBruler, J., Dissents with separate opinion.

Author: Givan

GIVAN, J.

A jury trial resulted in a conviction of appellant of Dealing in a Schedule II Controlled Substance, a Class B felony, for which he received a sentence of six (6) years. He was also found to be an habitual criminal, for which his sentence was enhanced by twenty-four (24) years for a total sentence of thirty (30) years.

The facts are: On September 7, 1985, Officer James Allison of the Evansville Police Department and Calvin Ard, a paid informant, went to the Vanderburgh County residence of "Fat Pat," a suspected crime figure, to see if Ard could buy drugs from him. While Allison waited across the street, Ard spoke with a man named "Roger" and then to appellant. Ard asked him, "Do you know where I could get some crank?" Appellant indicated he could find some at $30 for a quarter gram. Ard then got Allison. Appellant asked him if he were a cop, which he denied.

Allison and Ard haggled over price with appellant, who agreed to get them each a quarter gram for $30 apiece. Allison and Ard each gave him $30 cash. Appellant left to get the drugs and returned in ten or fifteen minutes. Appellant had only one half-gram bag, explaining his source was out of quarter-gram bags. Allison took the bag and later field tested it and placed it in an evidence locker. A subsequent State Police chemical analysis revealed the bag's contents contained methamphetamine.

Appellant contends the trial court erred in admitting into evidence State's Exhibits Nos. 5 and 6, evidence of appellant's prior conviction of delivering a controlled substance. In pretrial discovery, appellant stated his intention to raise the defense of entrapment. The State used the exhibits to show appellant's preDisposition to commit the crime charged and thereby rebut his entrapment defense. Appellant first argues that since he introduced no evidence regarding the defense of entrapment, the State was not entitled to introduce his prior conviction. He concedes that to get a jury instruction on entrapment, a defendant must indicate that he intends to submit such a defense in time for the State to present rebuttal evidence including prior convictions. Townsend v. State (1981), Ind.App., 418 N.E.2d 554, cert. denied (1982), 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853.

It would be unfair to preclude the prosecution from introducing all evidence relevant to preDisposition until the defendant has introduced evidence of entrapment. Appellant argues this rule unfairly results in undue police solicitation of persons having prior drug convictions, whose entrapment defenses are thus more easily negated. The question in any case is the defendant's preDisposition to commit the offense. It is not a persuasive argument that one person appears to have more preDisposition than another. Further, we can hardly disapprove of a rule because it encourages persons with prior convictions to say "No" to solicitations to sell drugs. It was not error to admit evidence of appellant's prior convictions once he indicated an intention to use an entrapment defense. It is immaterial that he did not submit such evidence.

Appellant also argues State's Exhibits Nos. 5 and 6 were evidence of occurrences too remote in time to be relevant, having occurred seven years prior to the crime charged. However, trial courts are given wide discretion regarding the irrelevancy of evidence due to remoteness. Bryan v. State (1983), Ind., 450 N.E.2d 53. The fact that a substantial time has passed goes to the weight of evidence, not to its admissibility. Allen v. State (1982), Ind., 431 N.E.2d 478. We find no error here arising from temporal remoteness, a consideration properly left to the finder of fact.

Appellant further contends it was error to admit State's Exhibits Nos. 5 and 6 because they were not shown to be evidence of convictions of the same person as appellant. They were certified copies of the charging information and the order book entry, respectively, of the conviction in 1978 of a Virgil Lewis Allen of dealing in a narcotic drug, Cause No. 78-CR-247. The State offered testimony of Officer Frank Wilkins that he knew appellant, that he arrested him for drug dealing for which he was convicted in 1978, and that he was present in the courtroom. Appellant argues that since Wilkins did not state the cause number of the 1978 arrest, his testimony did not sufficiently connect appellant with Exhibits Nos. 5 and 6.

He also argues that the witness "merely testified that some Virgil Allen in the Courtroom was the one convicted." However, the record reflects that Wilkins pointed out "Mr. Allen," who was "sitting there in the brown shirt." Undoubtedly the jury could discern whether he meant appellant or some other person.

"The question of defendant's prior convictions is for the jury's determination. (Citation omitted.) Identity may be proven by circumstantial evidence. (Citation omitted.) If the evidence yields logical and reasonable inferences from which the trier of fact may determine it was indeed the defendant who was convicted of felonies twice before, then sufficient connection has been shown." Coker v. State (1983), Ind., 455 N.E.2d 319, 322.

Thus in the case at bar sufficient connection was shown between appellant and Exhibits Nos. 5 and 6 so that their admission into evidence was not error.

Appellant contends the trial court erred in refusing his Tendered Instructions Nos. 5 and 6; he argues their substance was not covered by the instructions read to the jury. Smith v. State (1984), Ind., 468 N.E.2d 512. He argues that No. 5 was necessary to clarify that preDisposition is a question of the defendant's subjective intent and not of the relative strength of the State's inducement. Hardy v. State (1982), Ind.App., 442 N.E.2d 378. However, we find that the Court's Instruction No. 24 ...


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