Steven L. Small v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 07 2017, 7:16 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzanne St. John Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven L. Small, December 7, 2017
Appellant-Defendant, Court of Appeals Case No.
42A04-1703-CR-606
v. Appeal from the Knox Superior
Court
State of Indiana, The Honorable Gara U. Lee,
Appellee-Plaintiff Judge
Trial Court Cause No.
42D01-1607-F5-27
May, Judge.
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[1] Steven L. Small appeals his conviction of Level 5 felony dealing in
methamphetamine. 1 He argues the trial court abused its discretion when it
refused to give his proffered jury instructions on accomplice liability. As the
substance of his proffered instructions was covered by the court’s instruction,
we affirm.
Facts and Procedural History
[2] On July 1, 2016, around 9:00 p.m., Indiana Conservation Officer Shane Cooper
stopped his car near the Kessinger Ditch in Knox County. A white car was
parked in an area where local citizens park to fish and Officer Cooper wanted to
make sure those fishing were complying with the State’s fish and game laws.
As Officer Cooper approached the parked car, he noticed “a couple of fishing
poles, and a bucket, and I think a backpack on the actual bridge itself, but I
didn’t see anybody around.” (Tr. Vol. 1 at 208.) While Officer Cooper was
standing at the car, Small walked up from the ditch and began to make “small
talk,” (id. at 209), but the conversation was “really weird because he was just
talking unusually loud . . . .” (Id. at 210.) Even when Small got “right next to”
Officer Cooper, (id.), his voice was “unusual for being this close.” (Id. at 211.)
[3] As the two men discussed Small’s fishing, Officer Cooper began to “hear noises
coming – some clanking and a couple of splashes coming from underneath the
1
Ind. Code § 35-48-4-1.1(a)(1) (2016).
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bridge into the creek.” (Id.) Officer Cooper asked Small who was under the
bridge, and Small “said he didn’t know.” (Id.) Officer Cooper yelled
“Conservation Officer[,] you need to come up,” (id. at 213-14), but no one
replied or appeared, and the noises continued. Officer Cooper told Small they
were going down to the ditch and had Small go in front of him. On the way
down the path, Small stopped twice and complained the path was too steep.
Officer Cooper forced him to keep going.
[4] When they arrived at the bottom of the path, Officer Cooper saw
a five gallon bucket and a blue cooler. There’s some brown
napkins that’s got a white powdery substance on it. There was a
cell phone, a bank pole, 2 and I noticed there’s a wooden spoon
with a -- with stripped lithium batteries floating in the water. I
assumed it was lithium, because it was still bubbling. I could see
the bubbling in the water.
At the same time there’s an older female on the same side [of the
creek], but on the other side of the bridge right here frantically
trying to run up the hill back to the roadway.
(Id. at 217) (errors in original) (footnote added). Officer Cooper ordered the
woman to stop, but she did not slow down. Officer Cooper let the woman
leave and focused on Small.
2
A bank pole is “a PVC pipe, between four and six feet long, you actually to one end put a string on it with a
hook and essentially drive it into the bank, and then bait it and that’s essentially a bank pole.” (Tr. Vol. 1 at
219.)
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[5] Officer Cooper asked Small what was in the cooler, and Small replied, “I don’t
know it’s not mine.” (Id. at 218.) Small then proceeded to check his “bank
pole, which is located pretty much right next to the cooler, within a couple
feet.” (Id. at 219.) Officer Cooper opened the cooler and found:
[T]here was campground or camp fuel, a red bottle of Liquid
Fire. There was Morton salt. There was a black backpack and
channel locks, wire cutters, and then there was also a bottle I
think of Repel, and some window glass cleaner.
(Id. at 220.) At that point, Officer Cooper placed Small in handcuffs and took
him back up to the roadway. When they reached the top, the woman was
fleeing in the white car. Officer Cooper conducted a search of Small incident to
arrest and found he was in possession of “clear plastic gloves, a pocket knife,
three alkaline batteries, and some vice grips.” (Id. at 223.) After initially
denying he knew who was under the bridge, Small admitted the woman’s name
was Theresa Merydith.
[6] Another officer field-tested the white, powdery substance on the napkin and
found it contained methamphetamine. The cell phone belonged to Merydith,
the woman who fled the scene in the white car. Officers lifted fingerprints off
the items in the cooler, and a fingerprint lifted off the can of camp fuel matched
Small’s left ring finger. Lab tests revealed the powdery substance on the napkin
included 0.11 grams of methamphetamine.
[7] The State charged Small with Level 5 felony dealing in methamphetamine. A
jury found him guilty. The court imposed a six-year sentence, with five years
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suspended to formal probation. It ordered Small to serve three years of the
probation in community corrections work release and two years on supervised
probation.
Discussion and Decision
[8] The State charged Small with Level 5 Felony dealing in methamphetamine
based on an allegation Small “knowingly or intentionally manufacture[d]
methamphetamine.” (App. Vol. 2 at 77 (citing Ind. Code § 35-48-4-1.1(a)(1).)
A defendant may, however, be charged as a principal and convicted as an
accomplice. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). “A person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense . . . .” Ind. Code § 35-41-2-4. To be convicted
as an accomplice, a defendant need not participate in every element of the
offense. Castillo, 974 N.E.2d at 466. Rather, an accomplice can be found guilty
even when the crime is largely completed by the principle. Id. at 467.
[9] Small challenges the trial court’s refusal to give two instructions Small proffered
regarding accomplice liability.
Upon review of a trial court’s decision to give or refuse a jury
instruction, we apply an abuse of discretion standard. Treadway
v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation
omitted). “[T]his Court considers: (1) whether the instruction
correctly states the law; (2) whether there is evidence in the
record to support the giving of the instruction; and (3) whether
the substance of the tendered instruction is covered by other
instructions which are given.” Guyton v. State, 771 N.E.2d 1141,
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1144 (Ind. 2002) (internal citation omitted). Reversal arises
“only if the appellant demonstrates that the instruction error
prejudices his substantial rights.” Treadway, 924 N.E.2d at 636
(internal citation omitted).
Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). For prejudice to arise, “the
instructions taken as a whole must misstate the law or otherwise mislead the
jury.” Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008).
[10] Small’s proposed instructions stated:
[A] defendant’s presence during the commission of the crime or
his/her failure to oppose the crime are, by themselves,
insufficient to establish accomplice liability.
*****
In order to sustain a conviction as an accomplice, there must be
evidence of the defendant’s affirmative conduct, either in the
form of acts or words, from which an inference of common
design or purpose to effect the commission of a crime may
reasonably be drawn.
(App. Vol. 2 at 89.)
(1) Whether the Instructions Correctly State the Law
[11] Both of those instructions, as Small notes, are statements of law taken from
Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans. denied.
Vandivier did not, however, address the use of those statements of law as jury
instructions; rather, the issue in Vandivier was sufficiency of the evidence. See
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822 N.E.2d at 1054. Statements of law pulled from appellate court opinions are
not always “proper language for instructions to a jury.” Gravens v. State, 836
N.E.2d 490, 494 (Ind. Ct. App. 2005), trans. denied. “[T]he preferred practice is
to use the pattern jury instructions,” id. at 493, and that is what the trial court
did here.
[12] Nevertheless, we cannot say those proposed instructions are incorrect
statements of law. See Castillo, 974 N.E.2d at 466 (“That a defendant was
present during the commission of a crime and failed to oppose the crime is not
sufficient to convict her.”); Anthony v. State, 56 N.E.3d 705, 714 (Ind. Ct. App.
2016) (“‘[T]here must be evidence of his affirmative conduct, either in the form
of acts or words, from when an inference of a common design or purpose to
effect the commission of a crime may be reasonably drawn.’”) (quoting Griffin v.
State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014)), trans. denied. Thus, we move
to the second part of the analysis.
(2) Whether the Record Supports Giving the Instruction
[13] Small asserts the record contains “no dispute that the [sic] Small’s instructions
were supported by the evidence.” (Br. of Appellant at 16.) We agree the record
supported the giving of instructions on the theory of accomplice liability. As
the State notes, “it was already agreed that a pattern jury instruction on
accomplice liability would be provided.” (Br. of Appellee at 13.) Thus, there is
no disagreement that the record supported the giving of instructions on
accomplice liability. See, e.g., Brooks, 895 N.E.2d at 134 (record supported
giving of instruction on accomplice liability when evidence permitted inference
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Brooks was working in concert with associate who possessed drugs to be sold).
As this factor is undisputed, we examine the third part of the analysis.
(3) Whether the Tendered Instructions are Covered by Provided Instructions
[14] Finally, we turn to whether the substance of Small’s tendered instructions was
covered by the substance of the accomplice liability instruction the jury
received. The court’s instruction regarding liability as an accessory provided:
COURT’S FINAL INSTRUCTION NO. 5
Aiding, inducing or causing dealing in methamphetamine is
defined by law as follows:
A person who, [sic] knowingly or intentionally aids or induces or
causes another person to commit an offense, commits that
offense.
A person may be convicted of aiding or inducing or causing
dealing in methamphetamine even if the other person has not
been prosecuted for the dealing in methamphetamine, has not
been convicted of the dealing in methamphetamine, or has been
acquitted of the dealing in methamphetamine.
Before you may convict the Defendant, the State must have
proved each of the following elements beyond a reasonable
doubt:
1. The Defendant
2. knowingly or intentionally
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3. aided or induced or caused
4. Teresa Merydith to commit the offense of dealing in
methamphetamine, defined as knowingly or intentionally
manufactured methamphetamine. [sic]
5. by knowingly or intentionally helping prepare items for, or
concealing from law enforcement, the manufacture of
methamphetamine.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the Defendant not guilty of the
crime of Dealing in Methamphetamine, a Level 5 felony, as
charged in the Information.
If the State proved each of these elements beyond a reasonable
doubt, you should find the Defendant guilty of the crime of
Dealing in Methamphetamine, a Level 5 felony, as charged in
the Information.
(App. Vol. 2 at 96-7.)
[15] Small’s first proposed instruction covered the idea that the defendant’s mere
presence or failure to oppose the crime are not sufficient to establish accomplice
liability. (See id. at 89.) While the pattern jury instruction does not mention the
concepts of “mere presence” or “failure to oppose,” the instruction did require a
guilty verdict be based on the jury finding beyond a reasonable doubt that Small
“knowingly or intentionally help[ed] prepare items for, or conceal[ed] from law
enforcement, the manufacture of methamphetamine.” (Id. at 96.) If Small
helped prepare items or concealed Merydith’s manufacture from Officer Cooper
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then, as a matter of logic, he was neither “merely present” nor simply “failing
to oppose.” Thus, the substance of the first proposed jury instruction was
covered by the pattern jury instruction.
[16] Further, if Small helped prepare items or concealed Merydith’s manufacture
from Officer Cooper then Small was, in fact, committing affirmative acts. As
Small’s second proposed jury instruction emphasized the need for the defendant
to have committed “affirmative conduct, either in the form of acts or words,
from which an inference of common design or purpose . . . may reasonably be
drawn,” (id. at 89), the substance of Small’s second proposed instruction was
also covered by the instruction provided by the trial court.
[17] Because the substance of both of Small’s proposed instructions on accomplice
liability was covered by the pattern jury instruction that the trial court gave to
the jury, Small was not prejudiced by the court’s denial of his instructions. See,
e.g., Townsend v. State, 934 N.E.2d 118, 130 (Ind. Ct. App. 2010) (no error in
declining tendered instructions when substance covered by other instructions
given), trans. denied. The court did not abuse its discretion in declining to also
give Small’s instructions. Accordingly, we affirm.
[18] Affirmed.
Barnes, J., and Bradford, J., concur.
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