Jermaine McKinley v. State of Indiana , 2015 Ind. App. LEXIS 667 ( 2015 )

Oct 06 2015, 8:24 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jermaine McKinley, October 6, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1502-CR-78
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Seiter, Judge
Appellee-Plaintiff Trial Court Cause No.
49G20-1405-FA-26498
Robb, Judge.
Case Summary and Issue
[1] Following a jury trial, Jermaine McKinley was convicted of dealing in cocaine
as a Class A felony. McKinley appeals his conviction, raising one issue for our
review: whether the trial court properly instructed the jury as to the requisite
mental state for the offense of possession of cocaine with intent to deliver.
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Finding no fundamental error in the instruction of the jury, we affirm
McKinley’s conviction for dealing in cocaine.
Facts and Procedural History
[2] Officers James Burton and David Carney of the Indianapolis Metropolitan
Police Department arrested McKinley pursuant to an open arrest warrant on
May 21, 2014. During a search incident to arrest, Officer Burton discovered
five small baggies of suspected cocaine and $720 on McKinley’s person.1 After
being read his Miranda rights, McKinley admitted the baggies contained cocaine
and asked Officer Carney whether he could “just get rid of the drugs.”
Transcript at 48. Officer Carney said he could not do that but assured
McKinley that he would be okay. McKinley responded, “No, I won’t be, not
with it all bagged up like that.” Id. at 81-82. Forensic testing later confirmed
McKinley had been in possession of 5.233 grams of cocaine.
[3] The State charged McKinley with dealing in cocaine as a Class A felony and
possession of cocaine as a Class C felony. The charging information alleged:
COUNT I
Jermaine McKinney [sic], on or about May 21, 2014, did
knowingly possess with intent to deliver a controlled substance,
that is: cocaine, in an amount greater than three (3) grams;
1
McKinley was carrying mostly small bills: three $50 bills, twenty-seven $20 bills, one $10 bill, and four $5
bills.
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COUNT II
Jermaine McKinney [sic], on or about May 21, 2014, did
knowingly possess a controlled substance, that is: cocaine, in an
amount greater than three (3) grams . . . .2
Appellant’s App. at 19 (emphasis added).
[4] A jury trial was held on November 20, 2014. The trial court’s preliminary jury
instructions included the following instruction:
Preliminary Instruction No. 4
In this case, the State of Indiana has charged the Defendant with
Count 1: Dealing in Cocaine; and Count 2: Possession of
Cocaine.
The charges read as follows:
Count One: Jermaine McKinley, on or about May 21, 2014, did
knowingly possess with intent to deliver a controlled substance,
that is: cocaine, in an amount greater than three (3) grams;
Count Two: Jermaine McKinley, on or about May 21, 2014, did
knowingly possess a controlled substance, that is: cocaine, in an
amount greater than three (3) grams.
Id. at 46-47 (emphasis added).
2
The charging information was orally amended prior to trial, from “McKinney” to “McKinley.” Appellant’s
Appendix at 19; Tr. at 16. However, the sentencing order and Brief of Appellant refer to the Appellant as
“McKinney.” We refer to him as “McKinley,” as the correction is noted in the transcript and on the
charging information.
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[5] During closing argument, the State echoed the trial court’s preliminary
instruction: “In order to find the defendant guilty of Count I, Dealing in
Cocaine, you would have to believe that on or about May 21st, 2014, the
defendant did knowingly . . . possess with the intent to deliver cocaine in the
amount of three grams.” Tr. at 180 (emphasis added). Closing arguments
focused on McKinley’s intent to deliver the cocaine found on his person, as
McKinley had admitted to possessing the cocaine.
[6] Prior to jury deliberations, the trial court read additional instructions, which
included in relevant part:
Final Instruction No. 4
Defendant is charged in Count I with the offense of Dealing in
Cocaine, which is defined by statute as follows:
A person who knowingly delivers or possesses with intent to
deliver a controlled substance, that is: cocaine, in an amount
greater than three (3) grams, commits Dealing in Cocaine.
To convict the Defendant of Dealing in Cocaine, as charged in
Count I, the State must have proved each of the following
beyond a reasonable doubt: On or about May 21, 2014
Defendant
1. knowingly
2. possessed with intent to deliver
3. a controlled substance, that is: cocaine, pure or adulterated
4. in an amount greater than three (3) grams.
If the State fails to prove each of these elements beyond a
reasonable doubt, you should find the Defendant not guilty of
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Dealing in Cocaine, as charged in Count I.
***
Final Instruction No. 8
A person engages in conduct “knowingly” if, when he engages in
this conduct, he is aware of a high probability that he is doing so.
Appellant’s App. at 51-53 (emphasis added). The trial court did not define
“intent to deliver.” Defense counsel neither requested additional instructions,
nor objected to the trial court’s instructions regarding the elements of possession
of cocaine with intent to deliver.3
[7] The jury returned guilty verdicts on both counts. At sentencing, the trial court
merged Count II into Count I and entered a judgment of conviction for dealing
in cocaine as a Class A felony. The trial court sentenced McKinley to thirty-
five years, with twenty years executed in the Indiana Department of Correction,
fifteen years suspended, and two years of probation. This appeal followed.
Discussion and Decision
I. Standard of Review
[8] The purpose of a jury instruction is to inform the jury of the law applicable to
the facts and enable the jury to comprehend the case clearly so that it may
3
Defense counsel’s sole objection concerned an instruction defining “adulterated,” but the trial court
included that instruction over the defense objection. Tr. at 174-76.
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arrive at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d 469, 484 (Ind.
2015). McKinley was convicted of possession of cocaine with intent to deliver
as a Class A felony. Indiana Code section 35-48-4-1 (2006) provides in relevant
part:
(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
cocaine or a narcotic drug, pure or adulterated, classified in
schedule I or II; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
cocaine or a narcotic drug, pure or adulterated, classified in
schedule I or II;
commits dealing in cocaine or a narcotic drug, a Class B felony,
excepted as provided in subjection (b).
(b) The offense is a Class A felony if:
(1) the amount of the drug involved weighs three (3) grams
or more . . . .
[9] McKinley contends the jury instructions misstated the requisite mental state for
possession of cocaine with intent to deliver. He argues the trial court erred by
including the word “knowingly” as an element of the offense and thereby
permitted the jury to convict him on the dealing charge without finding a
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specific intent to deliver. Generally, a contemporaneous objection is required
to preserve such an issue for appeal. White v. State, 846 N.E.2d 1026, 1033 (Ind.
Ct. App. 2006), trans. denied. Our review of the record shows McKinley never
objected to the court’s instructions concerning the elements of possession with
intent to deliver. Nonetheless, McKinley argues the alleged error was
fundamental.
[10] The fundamental error exception is extremely narrow and applies only when an
error constitutes a blatant violation of basic principles of due process. Isom, 31
N.E.3d at 490. The error must be “so prejudicial to the rights of a defendant a
fair trial is rendered impossible.” White, 846 N.E.2d at 1033. When
determining whether an incorrect jury instruction amounts to fundamental
error,
we look not to the erroneous instruction in insolation, but in the
context of all relevant information given to the jury, including
closing argument and other instructions. There is no resulting
due process violation where all such information, considered as a
whole, does not mislead the jury as to a correct understanding of
the law.
Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations omitted).
II. Jury Instructions
[11] McKinley argues the trial court erred by including the word “knowingly” as an
element of possession of cocaine with intent to deliver, “when by statute that
crime requires specific intent rather than mere ‘knowing’ conduct.” Brief of
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Appellant at 7. He believes the State was required to prove “specific intent with
respect to every material element of the offense: possession, delivery, weight,
and intent that the substance was actually cocaine.” Id. at 9 (citing Ind. Code §
35-41-2-2(d)). The State contends the “knowingly or intentionally” that
appears in Indiana Code section 35-48-4-1(a)(1) applies to subsection (a)(2) as
well.
[12] We disagree with both readings of Indiana Code section 35-48-4-1. As to the
State’s argument, subsections (a)(1) and (a)(2) are distinct subparts separated by
the disjunctive conjunction “or.” The “knowingly or intentionally” that
appears in subsection (a)(1) does not modify subsection (a)(2). As to
McKinley’s argument, his reliance on Indiana Code section 35-41-2-2(d) is
misplaced.
[13] Indiana Code section 35-41-2-2(d) provides: “Unless the statute defining the
offense provides otherwise, if a kind of culpability is required for commission of
an offense, it is required with respect to every material element of the prohibited
conduct.” Our supreme court has clarified the applicability of Indiana Code
section 35-41-2-2(d) in the context of Indiana’s child molesting statute:
Indiana Code 35-42-4-3(b) provides in relevant part:
A person who, with a child under fourteen (14) years of
age, performs or submits to any fondling or touching, of
either the child or the older person, with intent to arouse or
satisfy the sexual desires of either the child or the older
person, commits child molesting, a Class C felony.
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***
Because the child molesting statute requires the jury to find, with
respect to the element of “arouse or satisfy . . . sexual desires,”
defendant acted intentionally, the Court of Appeals and
Defendant reason that Ind. Code § 35-41-2-2(d) requires
“intentional” mental culpability with respect to every element of
the child molesting offense. But the language of Ind. Code § 35-
41-2-2(d) simply does not support this construction. Ind. Code §
35-41-2-2(d) requires that the level of mental culpability required
for commission of the offense itself is required with respect to
every element of the offense. Here, as we have seen, an
“intentional” mental state is not required by the child molesting
statute for commission of the offense, only for a single element of
the offense. There is nothing in Ind. Code § 35-41-2-2(d) to
suggest that the Legislature intended it to work in the opposite
direction than it is written, i.e., nothing to suggest that the
Legislature intended that if a kind of culpability is required for
one (but only one) material element of the prohibited conduct, it
is required for commission of the offense and every material
element of it.
Louallen v. State, 778 N.E.2d 794, 795-98 (Ind. 2002) (holding “[i]t is sufficient
that a jury find that a defendant ‘knowingly’ performed the alleged fondling or
touching in order to convict” and “[t]he trial court did not err when it instructed
the jury that the defendant could be convicted [of child molesting] under Ind.
Code § 35-42-4-3(b) for ‘knowingly or intentionally’ fondling or touching a
child with intent to arouse or gratify himself or the child”).
[14] In addition, we recently held in Bookwalter v. State, 22 N.E.3d 735, 741-42 (Ind.
Ct. App. 2014), trans. denied, that possession of heroin with intent to deliver
may be enhanced to a Class A felony based on “the amount of the drug
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involved” without “proof of intent to deliver a specific weight of drugs.”4
Applying the reasoning of Louallen and Bookwalter, we disagree with McKinley’s
contention that specific intent is required with respect to every element of
possession of cocaine with intent to deliver as a Class A felony. And although
the word “knowingly” does not appear in Indiana Code section 35-48-4-1(a)(2),
we furthermore conclude the jury instructions in the present case do not
constitute fundamental error.
[15] In the context of attempted murder, it is well-established jury instructions must
include the mens rea of specific intent to kill and should not include the word
“knowingly.” Ramsey v. State, 723 N.E.2d 869, 871-73 (Ind. 2000) (citing
Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)). Our supreme court has
concluded “[a]ny jury instruction suggesting a lesser mens rea is inadequate,”
Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind. 1999), and “presents the potential
for fundamental error,” Ramsey, 723 N.E.2d at 872. Yet, even in cases of a
“clear Spradlin error,” a conviction will not be vacated if “(i) the intent of the
perpetrator was not a central issue at trial; (ii) the instructions as a whole
sufficiently suggested the requirement of intent to kill; or (iii) both.” Rosales v.
State, 23 N.E.3d 8, 12 (Ind. 2015) (citation omitted).
[16] In Ramsey, our supreme court found no fundamental error in the following jury
instruction:
4
Heroin is a Schedule I narcotic drug. Ind. Code § 35-48-2-4 (a), (c).
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A person attempts to commit murder when, acting with the
culpability required for commission of Murder, he engages in
conduct that constitutes a substantial step toward commission of
Murder; which is to knowingly or intentionally kill another
human being. The crime of attempted murder is a Class A
felony.
To convict the defendant of Attempted Murder under Count I,
the State must prove each of the following elements:
1. The defendant
2. knowingly
3. with specific intent to kill
4. engaged in conduct
5. which was a substantial step toward the commission of
the crime of Murder; which is to knowingly or
intentionally kill another human being.
If the State fails to prove each of these elements, you should find
the defendant not guilty.
If the State does prove each of these elements beyond a
reasonable doubt, you should find the defendant guilty of the
crime of Attempted Murder, a Class A felony.
723 N.E.2d at 871. Our supreme court concluded “[t]he trial court should not
have included the word ‘knowingly’ in either the first sentence or the
enumerated elements,” but found no fundamental error because the correct
mens rea was listed as an element the State was required to prove beyond a
reasonable doubt, and as an element of the offense in the charging information,
which was also read to the jury. Id. at 872. “[T]he jury instructions, taken as a
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whole, sufficiently informed the jury of the State’s burden of proving that the
Defendant specifically intended to kill the victim.” Id. at 873.
[17] Likewise, assuming “knowingly” should not be included in a jury instruction
on the elements of possession with intent to deliver,5 we believe the instructions
in the present case sufficiently inform the jury of the requirement of intent to
deliver. “Intent to deliver” was listed as an element of the offense during
preliminary jury instructions, the State’s closing argument, and final jury
instructions. Moreover, closing arguments from both sides focused almost
exclusively on whether the State had established McKinley’s intent to deliver.
The State emphasized the way the cocaine was packaged “ready to sell,” the
twenty-seven $20 bills on McKinley’s person, and the absence of paraphernalia
or any other signs of personal use. Tr. at 180-84. Defense counsel claimed
McKinley was a user, not a dealer. Defense counsel argued McKinley had just
received his income tax return and fell victim to the “Sam’s Club effect”: “You
go and buy in bulk [and] you get it cheaper.” Id. at 188.
[18] Under of the facts of this case, intent to deliver was the central issue at trial.
Although defining “intent to deliver” may have been preferable, terms in
common use that can be understood by a person of ordinary intelligence do not
5
The State cites several cases in which this court has stated Indiana Code section 35-48-4-1(a)(2)(C) requires
the State to prove that a defendant “knowingly” possessed cocaine with intent to deliver. See, e.g., Thompson
v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied; Upshaw v. State, 934 N.E.2d 178, 183 (Ind.
Ct. App. 2010), trans. denied; Turner v. State, 878 N.E.2d 286, 295 (Ind. Ct. App. 2007), trans. denied; Stokes v.
State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied.
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always need to be defined. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App.
1995), trans. denied. Reading the jury instructions as a whole and in the context
of all the information given to the jury, we cannot say the instructions were
misleading regarding the requirement of intent to deliver. Accordingly, we find
no fundamental error in the trial court’s instruction of the jury.
Conclusion
[19] The trial court did not commit fundamental error when it instructed the jury
that McKinley could be convicted under Indiana Code section 35-48-4-
1(a)(2)(C) for “knowingly” possessing cocaine with intent to deliver.
McKinley’s conviction for dealing in cocaine is therefore affirmed.
[20] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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