Kats v. State

GARRARD, Judge,

dissenting.

I dissent as to the majority's determination that the evidence was insufficient.

As to the count for dealing, the majority finds Kats was entrapped. In so doing it regrettably indulges in reweighing the evidence by relying upon that portion of the evidence which supports Kats's argument.

The evidence favoring the verdict supports a different inference concerning Kats's predisposition.

Kats showed a willingness to complete the deal at hand by arranging to supply the requested amount of cocaine in the near future. He demonstrated his awareness of the procedure, packaging and weights involved in a drug deal ("8-balls" and "quarters"). Kats was aware of the prices for the usual packaged amounts, and was familiar with readily available sources for cocaine in Chicago. He was familiar with *356the terminology and slang used for cocaine deals, eg., "8-ball" and "quarter" packages. He was operating as a middleman for a Chicago supplier. Finally, Kats was inferentially involved in a prior sale and another prior attempted sale. In addition to the above, a quantity of cocaine was found in Kats's jacket and in the car, and marijuana was found in his companion's purse, in the car's glove box and in the trunk.

From this evidence the jury could reasonably have determined that Kats was predisposed to commit the offense. See, e.g., Gilley v. State (1989), Ind., 535 N.E.2d 130, 132; Johnston v. State (1988), Ind., 530 N.E.2d 1179, 1181-82; Fundukian v. State (1988), Ind., 523 N.E.2d 417, 418. I would therefore affirm the conviction for dealing.

Concerning the conspiracy conviction, the evidence introduced at trial and the inferences therefrom which favor the jury's verdict are sufficient under our supreme court's decision in Chambers v. State (1988), Ind., 526 N.E.2d 1176 to support the verdict.

I, therefore, respectfully dissent.