Opinion
Charles R. Deets, III of Moore, Sandy, Moores&sDeets, Lafayette, for appellant.
Theo. L. Sendak, Atty. Gen., Robert E. Colker, Deputy Atty. Gen., Indianapolis, for appellee.
YOUNG, Judge.
ON PETITION FOR REHEARING
The appellant asserts that this Court erred in failing to address an issue raised on appeal. Ind. Rules of Procedure, Appellate Rule 11(B)(2), includes as one of the errors on which transfer may be based:
(e) that the decision of the Court of Appeals fails to give a statement in writing of Each substantial question arising on the record and argued by the parties. If this error is relied upon, the petition shall set forth such portions of the record so as to affirmatively disclose such failure, and establish that petitioner was prejudiced thereby.
(emphasis added).
The issue referred to by the appellant is whether the State may introduce evidence of a defendant's prior conviction in rebuttal to his entrapment defense when the defendant himself did not testify in his own behalf. This issue was raised in the Motion to Correct Errors. However, the only reference in the appellant's brief to the defendant's failure to testify is that "the Appellant did not take the stand in his own behalf and therefore the evidence was inadmissible for purposes of impeachment or (sic) credibility." This is a correct statement of law, but it does not relate to the issue assertedly overlooked. It clearly does not qualify as argument within the meaning of Ind. Rules of Procedure, Trial Rule 8.3(A)(7), and by provision of this rule the issue must be deemed waived. Therefore the issue does not qualify as a "substantial question . . . argued by the parties," either.
Rehearing denied.
ROBERTSON, J., concurs (sitting by designation).
LOWDERMILK, J., concurs (sitting by designation).