                                                                       Sep 03 2013, 5:47 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KAREN CELESTINO-HORSEMAN                         GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

MARION TURNER,                              )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )   No. 49A05-1302-CR-59
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Steven R. Eichholtz, Judge
                     The Honorable Peggy R. Hart, Commissioner
                          Cause No. 49G20-1201-FA-4659


                                 September 3, 2013

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          Marion Turner (“Turner”) appeals his conviction for Dealing in Cocaine, as a Class A

felony.1 We affirm.

                                              Issues

          Turner presents two issues for review:

          I.      Whether testimony of statements allegedly made by a confidential
                  informant was erroneously excluded as hearsay; and

          II.     Whether the evidence was insufficient to prove his predisposition to
                  deal cocaine.

                                  Facts and Procedural History

          On August 30, 2011, Turner sold 6.9115 grams of cocaine to Indianapolis

Metropolitan Police Department Detective Brad Nuetzman (“Detective Nuetzman”) for

$350.00. The transaction had been arranged through a confidential informant (“C.I.”),

supervised by Sergeant Stephen Butler (“Sergeant Butler”). At the conclusion of a jury trial

conducted on November 13, 2012, Turner was convicted of Dealing in Cocaine. He was

sentenced to twenty-six years imprisonment. He now appeals.

                                     Discussion and Decision

                        I. Exclusion of Confidential Informant’s Statements

          Turner’s theory of defense was entrapment.        By the time of trial, the C.I.’s

whereabouts were unknown. However, Turner testified at trial and sought to repeat




1
    Ind. Code § 35-48-4-1.

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statements allegedly made by the C.I. The State objected on hearsay grounds2 and Turner

argued that, because the C.I. acted as an agent of the State, the C.I.’s statements were

admissible as statements of a party-opponent, an exception to the hearsay rule addressed by

Indiana Evidence Rule 801(d)(2).3 The trial court sustained the State’s hearsay objection and

Turner made an offer of proof.

        In general, ruling on the admission or exclusion of evidence are reviewed for an abuse

of discretion. Banks v. State, 839 N.E.2d 794, 796 (Ind. Ct. App. 2005). However, a ruling

is reviewed de novo when it turns upon a misunderstanding of a rule of evidence such as the

hearsay rule. Id.

        “An agent is one who acts on behalf of some person, with that person’s consent and

subject to that person’s control.” Oil Supply Co., Inc. v. Hires Plant Serv., Inc., 726 N.E.2d

246, 248 (Ind. 2000). Sergeant Butler testified and described his arrangements with the C.I.

and the transaction that took place. He explained that confidential informants act as “agents

for us.” (Tr. 209.) In order to escape criminal prosecution for a marijuana-growing

operation, the C.I. had agreed to arrange a cocaine purchase from Turner. His statements to

Turner were in furtherance of that objective. We agree with Turner that, from all indications,

the C.I. acted on behalf of the State and within the scope of his agency. His statements could

properly be considered non-hearsay statements pursuant to Evidence Rule 801. See Banks,


2
 Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).
3
 A statement is not hearsay if the “statement is offered against a party and is (A) the party’s own statement, in
either an individual or representative capacity; or … (D) a statement by the party’s agent or servant concerning
a matter within the scope of the agency or employment, made during the existence of the relationship[.]”

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839 N.E.2d at 797 (statements of a police officer regarding a matter within the scope of his

employment were not hearsay); see also Allen v. State, 787 N.E.2d 473, 479 (Ind. Ct. App.

2003) (holding that, in criminal cases, the party-opponent provision in the Indiana Rules of

Evidence applies to statements by government employees concerning matters within the

scope of their agency or employment), trans. denied.

       Assuming that the C.I.’s statements were otherwise admissible but erroneously

excluded on hearsay grounds, this does not end our inquiry. “When a statement has been

excluded from evidence that was not in fact hearsay, this Court will review the trial court’s

decision under a harmless error analysis.” Miller v. State, 720 N.E.2d 696, 704 (Ind. 1999).

An error will be found harmless if, in light of the totality of the evidence in the case, its

probable impact on the jury is sufficiently minor so as not to affect the substantial rights of

the parties. Id.

       The offer of proof included Turner’s testimony that: the C.I. had contacted him in

August asking if Turner could procure cocaine or point him in the right direction; Turner had

initially refused; the C.I. had made six to twelve calls, increasing the amount to be offered;

Turner was concerned because the C.I.’s actions were out of character and he seemed to be in

trouble; and, ultimately the C.I. made Turner an offer that he acted upon. Tr. 154-57.

       Thereafter, with the jury present, Turner testified: that the C.I. called him between six

and twelve times in the month of August; they had not discussed cocaine sales prior to

August; Turner was “very needed to produce cocaine” for the C.I. (Tr. 171); Turner’s

financial situation was deteriorating at the same time he was detecting “urgency” on the part


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of the C.I. (Tr. 172); on August 30, Turner received a phone call from the C.I. “different”

from the others, where “the intensity was basically up the ante” and the C.I. seemed “frantic,”

and “almost crazy.” (Tr. 174.)

       Accordingly, the jury was ultimately advised of the C.I.’s statements deemed relevant

by Turner, with one notable exception. The jury was not specifically advised that the C.I.

had offered an increased amount of money, consistent with Turner’s offer of proof.

However, the jury did hear Turner’s testimony that “the intensity was basically up the ante.”

(Tr. 174.) The fact-finder could have reasonably interpreted this to include offering more

cash, particularly in light of the fact that Turner stated that his finances had been

deteriorating and there was no indication that the C.I. ever offered anything of a non-

monetary nature to induce the transaction. Turner presented his version of events to the jury.

The exclusion of a specific statement that a higher monetary offer was made by the C.I. is, at

most, harmless error.

                        II. Sufficiency of Evidence of Predisposition

       Indiana Code section 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.

       Entrapment is established as a matter of law if the defendant shows police inducement


                                              5
and the state fails to show predisposition on the part of the defendant to commit the crime

charged. Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994). For the State to overcome an

entrapment defense, the State must prove beyond a reasonable doubt either “the defendant’s

conduct was not a product of the efforts of a law enforcement officer or that the accused was

predisposed to engage in the conduct.” McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996).

Whether a defendant is predisposed to commit the crime charged is a question for the trier of

fact. Dockery, 644 N.E.2d at 577. Turner contends that the State failed to present evidence

showing his predisposition to sell cocaine.

       We review a claim of entrapment using the same standard applicable to other

challenges to the sufficiency of the evidence. Id. at 578. We consider only the evidence and

reasonable inferences that support the verdict, and we will neither reweigh the evidence nor

judge the credibility of witnesses. Id. We will uphold a conviction if there is substantial

evidence of probative value from which a reasonable trier of fact could infer that the

appellant was guilty beyond a reasonable doubt. Id.

       A jury may properly find predisposition from such circumstances as familiarity with

drug jargon and prices, engaging in multiple transactions, and undertaking to arrange future

transactions. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999).

       Turner was able to produce around seven ounces of cocaine, an amount more

consistent with a dealer than a typical user. Telling Detective Nuetzman that he wanted to

“be safe,” Turner asked Detective Nuetzman to “go ahead and try the cocaine.” (Tr. 91.)

Detective Nuetzman protested that he “didn’t smoke it” and Turner corrected him: “it wasn’t


                                              6
what you smoke – it’s soft.” (Tr. 91.) Turner advised the detective that the cocaine was

“bricked up.” (Tr. 92.) According to Detective Nuetzman, the description is consistent with

the cocaine having been taken from a one kilogram brick. After the transaction was

concluded, Turner told Detective Nuetzman to “go ahead and give him a call” if he “needed

anything else tonight.” (Tr. 98.)

       This evidence indicates that Turner was familiar with drug jargon and was soliciting a

future transaction. As such, there is sufficient evidence to permit the jury to conclude beyond

a reasonable doubt that Turner was predisposed to deal cocaine.

                                         Conclusion

      We find no reversible error in the trial court’s exclusion of testimony that the C.I.

offered an increased purchase price. The State presented sufficient evidence of Turner’s

predisposition to commit the charged crime to overcome the defense of entrapment.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




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