Conklin v. State ( 1992 )

SULLIVAN, Judge.

Appellant-defendant Michael R. Conklin (Conklin) appeals his conviction for dealing cocaine, a Class B felony.

The evidence relevant to the appeal discloses that during the early morning of April 25, 1989, police officers in Porter County executed several arrest warrants involving illicit drug activities. Among those arrested was Kip Gillie (Gillie) After his arrest, Gillie volunteered to complete a drug sale with Conklin which had been pre-arranged for that afternoon.

According to the plan, Conklin would visit Gillie in the afternoon. Conklin would purchase approximately two grams of cocaine.

Prior to Conklin's arrival, Gillie was outfitted with a recording device, and two police officers hid in the bedroom. Upon his arrival at Gillie's apartment, Conklin received approximately two grams of cocaine and at the time consumed about one-third of that total amount. After a brief conversation between Gillie and Conklin, the officers, who were located approximately eight feet from the conversants, shouted "police." Conklin ran from the apartment, dropped the cocaine on the stairs, and was subdued by police officers.

Conklin was arrested and charged with dealing in cocaine, a Class B felony. After a trial by jury, Conklin was convicted of the charge. This appeal ensued.

Conklin raises two issues for review:

(1) Whether the trial court erred in allowing testimony into evidence regarding previous uncharged acts of dealing in cocaine; and

(2) Whether the conviction is supported by sufficient evidence.

It is without question that as a general proposition evidence of extrinsic criminal conduct is prejudicial and inadmissible. Here Gillie was permitted to testify that Conklin had in the distant past sold eocaine. This is a classic case of inadmissible prior criminal conduct. The evidence of past conduct adduced through the testimony of Gillie does not establish a common scheme or plan with regard to the offense here charged. At best it shows that two to three years previously, Conklin had sold cocaine. An inference is therefore invited to the effect that "once a cocaine dealer, always a cocaine dealer". The law is otherwise. Street v. State (1991) 5th Dist. Ind.App., 567 N.E.2d 1180, trans. denied.

Such evidence is inadmissible if, as here, it merely shows a tendency on the part of the defendant to commit certain types of crimes. Manuel v. State (1977) 267 Ind. 436, 370 N.E.2d 904. To be admissible under the theory propounded here, the evidence of Conklin's prior activity must be "so related in character, time and place of commission as to establish some plan which embraced both the prior ... criminal activity and the charged crime." Malone v. State (1982) Ind., 441 N.E.2d 1339, 1347.

No connection was established between Conklin's past conduct and the cocaine possession here involved. To the contrary, the quantity involved, two grams, one-third of which was consumed by Conk-lin at the time, strongly indicates personal use. It does not suggest an intent to distribute the remaining quantity to others. See Isom v. State, No. 18 (March 3, 1992) 2d Dist.Ind.App., - N.E.2d -. The evidence of past conduct here was too remote in time, place and cireumstance to constitute a common scheme or plan. Clark v. State (1989) Ind., 536 N.E.2d 493; Riley v. State (1986) Ind., 489 N.E.2d 58.

Nevertheless, there is evidence that Conklin did have the requisite intent to deliver. According to Gillie, Conklin indicated after using a portion of the cocaine, that "he had to go, he had to go deliver it to somebody, some people at work...." Record at 297. However, this evidence is not so overwhelming as to permit us to conclude that the inadmissible evidence of prior conduct did not contribute to the jury verdict. We are therefore unable to affirm the dealing conviction.

Rather than reverse and remand for a new trial, however, we reverse and remand with instructions to enter a conviction for the necessarily lesser included offense of possession of cocaine as a Class D felony, pursuant to 1.C. 35-48-4-6. See Isom v. State, supra.

STATON, J., concurs. HOFFMAN, J., dissents with opinion.