Hindman v. StateHindman v. State
OPINION
Terry N. Hindman, Jr., was convicted in the District Court of Oklahoma County, of Unlawful Distribution of a Controlled Substance, Phenсyclidine (PCP), After former Conviction of a Felony, in violation of
The principal issue we address on appeal is whether a valid procuring agent defense was established.
I.
FACTS
On August 8,1979, an undercover narcotics agent, John Guytоn, went to an Oklahoma City restaurant in order to make a narcotics purchase from the appellant. Hindman was in the company of Howard Breeden. As the officer entered the restaurаnt, the appellant looked to Breeden and stated, “We ought to do this thing and get it over with.” The threе subjects went into the restroom and Breeden produced a container of PCP. Breeden told Guyton that Hindman should “get something for his trouble for setting up the sale.” Breeden handed one gram of PCP to the appellant and one quarter ounce of PCP to the officer. Guyton gave Breeden two hundred аnd seventy-five dollars ($275). Hindman offered no defense.
II.
PROCURING AGENT DEFENSE
The appellant argues that the State’s evidеnce merely established that he was acting in the capacity of a procuring agent. The procuring agent defense “constitutes a judicial recognition that where a person has acted solely as an agent for the buyer in a narcotics sale, without having prearranged this sale оn the seller’s behalf and without having any interest, personal or financial, in the sale his conviction” for the sale of narcotics “would result in an unjust interpretation of the law.”
Yetter v. State,
In
Tipton v. State,
III.
SUFFICIENCY OF THE EVIDENCE
The appellant was convicted under
Except as authorized by this Act, it shall be unlawful for any person:
1. To manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled dangerous substanсe;
Hindman claims that the State failed to prove that he was a principal to the crime of unlawful distribution of a controlled substance. He asserts that the State merely established that his conduct amounted to mental acquiescence to the sale, which is not sufficient to sustain a conviсtion. We agree that it is generally recognized that no one can be convicted of a сrime to which he has never expressly or impliedly given his assent. Further, mere presence of the аccused at the scene of the crime does not invoke criminal responsibility. Turner v. State, 477 P.2d 76 (Okl.Cr.1970).
In order for an аccused to be convicted as a principal in the crime, it is necessary to establish that hе either directly committed the crime or aided and abetted in its commission.
The record clearly shows the participation on the part of Hindman to be more than a mere mental acquiescence or presence at the narcotics sale. His actions were essential in setting up the sale and negotiating the price of the narcotics. Additionally, his own statement “we ought to do this thing and gеt it over with” demonstrates his direct participation in the criminal episode. The defendant was present when the exchanges were made between the buyer and seller. He actively partiсipated by negotiating prices with the buyer. Additionally, the evidence shows that the appellant received compensation for arranging the sale, the vendor gave him one gram of PCP. From these facts, there is ample evidence of a prearranged conspiracy between thе seller and the appellant.
IV.
A SUSPENDED SENTENCE IS DISCRETIONARY
Hindman next contends the trial court erred in not suspending his entire ten year sentence. The question of whether to give a suspended sentence is a matter of discrеtion with the trial court.
Sargent v. State,
AFFIRMED.