This is a direct appeal from convictions of dealing in Pentazocine, a class C felony, Ind.Code § 85-48-4-3, and dealing in Cocaine, a class B felony, Ind.Code § 85-48 4-1. The case was tried before a jury. Appellant received concurrent twelve year sentences.
Appellant raises five issues on appeal: (1) whether the trial court erred in denying his motion for continuance in order to procure different defense counsel; (2) whether the trial court erred in permitting the State to present evidence without his presence; (8) whether the trial court erred in permitting the police officers to testify about conversations with a confidential informant; (4) whether the trial court erred in refusing tо give a possession instruction; and (5) whether the trial court erred in admitting into evidence testimony about the search of his residence and the seizure of drugs on March 29, 1982.
These are the facts that tend to support the determination of guilt. On March 17, 1982, Officer Valsi of the Gary Police Department and a confidential informant went to appellant's rеsidence in order to purchase certain drugs. Officer Valsi purchased tripelennamine and pentazocine, commonly known as "t's and blues," from appellant. On March 28, 1982, Officer Can-diano and a confidential informant went to appellant's residence. Officer Candiano purchased cocaine from the appellant for twenty five dollars. After this purchase, he observed another individual purchase drugs from appellant. Officer Candiano followed the individual, stopped her vehicle, and arrested her for possession of talwin and pentazocine. On March 29, 1982, Officer Candiano obtained a search warrant to search appellant's residence. When hе entered the residence he heard someone running, and observed appellant throwing "stuff" into the toilet. Cocaine, tripelenna-mine and pentazocine were confiscated from appellant's residence, and he was arrested.
I
Appellant contends that the trial court committed error in denying his motion for continuancе of the trial. The motion was based upon the claim that he had never discussed his case with his court-appointed public defender and wished to obtain a private attоrney. This is a non-statutory motion and as such must be supported by good cause. T.R. 58.4.
This motion was made on the first morning of trial. Continuance motions made at this point in time are not favоred, because if granted they entail the waste of work done in preparing the case for trial. Magley v. State (1975),
II
Appellant argues that the trial court erred in permitting the State to present evidence without his presence. Appellant arrived at the trial several hours аfter its commencement.
A defendant may waive his constitutional right to be present at his own trial by his failure to appear when he knows of his obligation to appear. Faison v. State (1981), Ind.,
*872 Here, appellant's attorney stated he had given notice of the trial's date and time to him. Also, appellant failed to notify the court and explain his delay. Furthermore, the trial court instructed the jury that his absence was not evidence of guilt and that he had the right to give up the rights to confront and to aid in the crosg-examination оf witnesses. It is clear that appellant voluntarily chose not to diligently exercise these rights and that the possible prejudice engendered by his choice was minimized by the triаl court's instruction.
III
Appellant argues that the trial court erred in permitting the police officers to testify about conversations with a confidential informant. He contеnds that portions of the officers' testimony constituted hearsay.
Appellant, however, did not object at trial on this ground, so as to raise this issue. Harden v. State (1983), Ind.,
IV
Appellant contends that the trial court erred in refusing to instruct the jury on the lesser included offense of possession. In dealing with a claim of this type, the court follows a two step analysis. Lawrence v. State (1978),
The second step is to examine the evidence presented at trial, and particularly that evidence of the elemеnts distinguishing the two offenses, and determine whether a verdict of guilty of the lesser could be based thereon rather than upon a compromise between the jurors who believe the accused guilty of the offense charged and those who believe him not guilty thereof. Lawrence v. State, supra.
In the present case it is clear that possession of a controlled substance would satisfy the traditional test as a lesser and included offense of the offense of possessing a controlled substance with the intent to deliver it. However, it is equally clear that possession in this case fails the second step. There was substantial evidence of a direct nature, and further inferences therefrom, that appellant was conducting a business at this location and had the intent to do that rather than to possess it for personal use. The evidence was not such аs to warrant a lesser included offense instruction on possession alone, and the trial court was correct in its position. It is inherent in this rationale that it was not within the provinсe of the trier of fact to believe the testimony of the prosecution witnesses that appellant had possession of these controlled substances, and at the same time reject their testimony that he sold some of them.
y
Appellant finally argues that the trial court was in error in permitting the jury to be presented with the evidence of the search of his residence and the seizure of drugs on March 29, 1982, the day following the last sale charged in Count II on March 28, 1982. The basis of the objection was that such evidence wаs irrelevant as proof of the charged crimes, and greatly prejudicial.
The general rule is that evidence of crimes of criminal acts other than those charged is generally inadmissible as proof of the guilt of a defendant, however such evidence may properly be introduced for the purpose of showing intent, motive, purpоse, identity, or a common scheme or plan. Hill v. State (1983), Ind.,
The chаllenged evidence procured here through the search warrant was relevant to prove appellant's intent, and his plan to sell narcotics on the previous day. It indeed falls into about every category of exception to the general exclusionary rule. On the other hand it demonstrates no more than the business and the profit motive, and doesn't show a different vicious, dangerous or condemnable nature than that contemplated within the crimes charged. We find that the trial court correctly struck the balance as it did. ©
The conviction is affirmed.