Robert W. Evans v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of May 01 2014, 8:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT W. EVANS, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1308-CR-386
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1211-FA-16
May 1, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Robert Evans appeals his conviction for Class A felony dealing in
methamphetamine. He argues that the trial court improperly admitted evidence regarding
the results of a Draeger pump instrument test, which tests for the presence of ammonia,
without first establishing the test’s reliability. Additionally, Evans claims that the trial
court erred in refusing to instruct the jury on his proposed jury instruction on constructive
possession. We find that the test results were properly admitted and the court did not err
in refusing to give Evans’s tendered jury instruction. We therefore affirm the trial court.
Facts and Procedural History
On an evening in November 2012, Pam Smith and Evans decided to make
methamphetamine together. Evans and Pam went to Evans’s mother’s house to gather
ingredients and tools to make methamphetamine. Tr. p. 231. The items were gathered and
placed inside two backpacks, a black1 backpack and a pink backpack. There was a green
two-liter bottle inside the black backpack. Id. at 189.
After Evans’s mother’s house, Pam and Evans went to Kelley Brickey’s house. The
group ingested methamphetamines before deciding to take a taxi cab to Pam’s house, which
was located at 1533 N. 17th Street in Lafayette, Indiana (“the Smith Residence”), to make
methamphetamine. Evans, Pam, and Brickey went into the house through the back door.
Charles Hill, who lived directly behind the Smith Residence, saw Pam walking around the
1
There is conflicting testimony as to whether the backpack carried by Evans was green or black.
Compare Tr. p. 50 with Tr. p. 235. However, it is undisputed that Evans was carrying a dark-colored
backpack when he entered the Smith Residence.
2
side of her house with a man and a woman that he did not recognize. Id. at 41. Pam and
the man were carrying backpacks on their shoulders. Id. at 41, 50.
Once inside the house, Brickey, Pam, and Evans went down into the basement. Pam
and Evans gathered all of the supplies to begin the process of making methamphetamine.
Brickey saw Evans putting pills in the green two-liter bottle. Meanwhile, Pam lit incense
and hung blankets on the windows and at the basement entrance to prevent the smell from
traveling into the other parts of the house.
Meanwhile, Hill went to the Smith Residence to retrieve four movies that he had
lent to one of the occupants of the house. He noticed that the smell inside was a “deadly
chemical smell.” Id. at 44. He grabbed his movies and ran out of the house. Id. at 45.
Once outside, he fell to the ground because he could not stop coughing. Id. After he
returned to his house, he called the police because he “knew [the odor] was something
dangerous.” Id.
Lafayette Police Department Officers Bernard Myers and Ryan French were
dispatched to the Smith Residence in response to Hill’s call. When the officers arrived,
they walked around the house, and Officer Myers noticed that a vent pipe was emitting
exhaust from the furnace that smelled like ammonia—a common smell during the process
of making methamphetamine. The officers then knocked on the door and spoke to
Elizabeth Smith, the primary leaseholder of the house. Elizabeth allowed the officers into
the house to investigate.
The officers asked if there was anyone else in the house, and Elizabeth responded
that her father was upstairs but she did not think anyone else was home. She then checked
3
the basement door, but it was locked. Elizabeth called out to ask if anyone was in the
basement. Pam, Elizabeth’s daughter, responded, and Elizabeth told Pam that the police
were in the house. About a minute later, Pam emerged from the basement.
Officer Myers noticed that the smell of ammonia was coming from the basement.
Both officers went into the basement to investigate. Before going into the basement, the
officers asked if anyone else was there. No one responded. As the officers walked down
the basement stairs, Officer Myers noticed a blanket covering the threshold of the
basement. Once he pushed aside the blanket, he experienced an overwhelming smell of
ammonia. The smell was so overpowering that it was nearly impossible to breathe. Both
officers coughed and their throats burned from the smell. The police saw Evans sitting on
a chair and Brickey sitting on the bed.
Officer Myers asked both Evans and Brickey to come to him because the odor of
ammonia was so overwhelming. Officer Myers handcuffed Evans, and Officer French
escorted Brickey up the stairs. Pam was also handcuffed. The officers did not search the
basement or collect any evidence because it was unsafe to do so. Id. at 65. After exiting
the basement, the officers called the fire department, emergency medical services, and the
Indiana State Police Lab Team. Evans, Brickey, and Pam were arrested that evening for
their involvement in the production of methamphetamine.
Indiana State Police Trooper Ryan Royer, a member of the Indiana State Police
Clandestine Laboratory Response Team, was dispatched to the Smith Residence and
arrived around 1:00 a.m. with Troopers Sean Schaffer and Kent Wainscott. Trooper Royer
found several items that were associated with manufacturing methamphetamine, including
4
Rooto drain opener, lithium batteries, aluminum foil, coffee filters, Coleman camp fuel,
salts, and cold packs containing ammonium nitrate. Id. at 120, 124-125, 139.
Trooper Royer also found a green soda bottle that he believed was the reaction
vessel used to produce methamphetamine. He performed a Draeger test2 to confirm that it
was used to produce methamphetamine,3 and the bottle tested positive for ammonia or
another basic amine.4 According to Trooper Royer, one can distinguish between ammonia
and other basic amines based on differences in odor and temperature. Although Trooper
Royer was not able to observe these differences because he was wearing gloves and a mask,
Trooper Schaffer removed his personal protection equipment just as Trooper Royer was
completing the Draeger test on the green bottle and noticed that it smelled like ammonia.
Trooper Royer also examined a bottle cap from the basement and found methamphetamine
residue on it. Id. at 171. Based on the items found, his observations in the basement, and
the tests performed, Trooper Royer concluded that methamphetamine was being produced
in the basement.
The State charged Evans with Class A felony dealing in methamphetamine, Class
C felony possession of a Schedule II controlled substance, and Class B felony possession
of methamphetamine.5 Appellant’s App. p. 82-84.
2
A Draeger test is a test where a tube is used to test for the presence and concentration of a particular
chemical compound. Tr. p. 130.
3
Trooper Royer tested the two-liter bottle for ammonia because anhydrous ammonia is one of the
ingredients necessary to make methamphetamine. Tr. p. 112.
4
The tube labeled “ammonia” will test positive if ammonia or other basic amines are present in the
chemical compound that is tested.
5
Evans was charged with Class A felony dealing in methamphetamine instead of Class B felony
dealing in methamphetamine because the Smith Residence is within 1000 feet of a public park. See Ind.
Code § 35-48-4-1(b)(3)(B)(ii).
5
Just before trial, Evans filed a motion to suppress the results of the Draeger test
because the State did not establish the test’s reliability. Id. at 71. The trial court held a
hearing on the motion to suppress. At the hearing, Trooper Royer testified that he used the
Draeger test to determine if ammonia was present in the reaction vessel. The trial court
decided to withhold judgment until a chemist could testify about whether the Draeger test
is sufficiently reliable. Tr. p. 26-27.
The following day, Hailey Newton, an employee of the Laboratory Division of the
Indiana State Police, testified outside the presence of the jury. She explained that she
conducted a validation study of the Draeger test. According to Newton, there were no
instances of false positives or false negatives. Id. at 86. The results of her study were also
presented before the Clandestine Laboratory Investigating Chemist Association, and she
was not familiar with any studies indicating that Draeger tests are unreliable. Id. at 87.
The test is also used by the Drug Enforcement Agency and the Occupational Safety and
Health Administration. Id.
Newton explained that a positive result on an ammonia Draeger tube indicates that
ammonia or another basic amine is present. Moreover, that information combined with
other observations, such as odor, temperature, or appearance of the chemical, can help one
determine whether the substance tested was ammonia or another basic amine. Id. at 88,
90-91.
Officers must go through an annual eight-hour refresher course, which includes
training on how to conduct a Draeger test. Ultimately, Newton stated that she believed the
Draeger test is reliable. Id. at 86, 95-96.
6
After Newton’s testimony, the trial court concluded:
The fact that ammonia or another basic amine was present in the bottle, I
think is the sort of thing that is generally accepted in the scientific community
as the proper use of a Draeger test and there is no evidence that it isn’t reliable
and there is the evidence presented today that it is reliable. The---and
especially in the context of how the jury should interpret the smell of
ammonia that one or more witnesses will---at least two witnesses will testify
to, the fact that there is a particular bottle which tested to have contained a
basic amine is going to be, again, useful information that they won’t be able
to deduce from their own experience, so that as a skilled witness, not as a
scientist, the officer can testify as to what the results of his test were to the
extent of presence or absence. So the motion in limine is overruled.
Id. at 100-101. The trial court also distinguished the facts in this case from those in West
v. State, 805 N.E.2d 909 (Ind. Ct. App. 2004), trans. denied. In that case the trial court
excluded the results of the Draeger test because an officer provided only an overview of
his training and how the Draeger test functions. Here, however, a chemist specifically
testified about the reliability of the Draeger test. Id. at 101.
At the conclusion of the jury trial, Evans proposed a constructive-possession-in-a-
home instruction, which stated:
Possession of something may take two forms. One can possess an
item directly, meaning that he/she has actual physical control over the item.
Or, one can possession [sic] something constructively, meaning that he/she
has the capability and intent to possess the item, even though actual physical
control is absent. Evidence has been presented that other individuals may
have visited at, or resided in, Elizabeth Smith’s home. As such, possession
of those premises was not exclusive to her. When possession of the premises
on which drugs or their precursors is not exclusive, the inference of intent to
maintain dominion and control over the items must be supported by
additional circumstances pointing to the accused’s knowledge of the nature
of the drugs and/or precursors and their presence in her home. These
additional circumstances can include incriminating statements the accused
made, attempted flight or furtive gestures, proximity of the substances to the
accused, location of the substances within the accused’s plain view, and the
combining of the substances with other items that the accused owned.
7
Appellant’s App. p. 59. The trial court denied Evans’s request because the instruction was
already covered by the trial court’s constructive-possession instruction and because it
unnecessarily emphasized that Elizabeth was the primary leaseholder of the Smith
Residence. Tr. p. 317. Instead, the trial tendered Instruction No. 14.156 of the Indiana
Pattern Jury Instructions on possession:
The word “possess” means to own or to exert control over. The word
“possession” can take on several different, but related meanings.
There are two kinds of “possession”: actual possession and
constructive possession. A person who knowingly has direct physical control
of a thing at a given time is then in actual possession of it. A person who,
although not in actual possession, knowingly has both the power and the
intention at a given time to exercise control over a thing, either directly or
through another person or persons, is then in constructive possession of it.
Possession may be sole or joint. If one person alone has actual or
constructive possession of a thing, then possession is sole. If two or more
persons share actual or constructive possession of a thing, then possession is
joint.
Possession may be actual or constructive, and either alone or jointly
with others.
Appellant’s App. p. 32-33; see also Indiana Pattern Jury Instruction No. 14.156—Criminal
(3d ed. 12/2003).
The jury found Evans guilty of all charges. At the sentencing hearing, the trial court
merged Evans’s convictions for Class C felony possession of a Schedule II controlled
substance and Class B felony possession of methamphetamine into his Class A felony
dealing-in-methamphetamine conviction. Tr. p. 378-79. The trial court then sentenced
Evans to forty years in the Department of Correction.
Evans now appeals.
Discussion and Decision
8
Evans raises two issues on appeal. First, he asserts that the trial court erred in
admitting the results of the Draeger test. Second, he argues that the trial court erred in
refusing to give his proposed jury instruction on constructive possession.
I. Admission of the Draeger Test Results
Evans first contends that the trial court erred in admitting the results of the Draeger
test under Indiana Rule of Evidence 702. We review the trial court’s decision to admit
evidence based on a scientific process under an abuse of discretion standard. Doolin v.
State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the circumstances. Id.
Under Indiana Rule of Evidence 702(b), expert scientific testimony is admissible
only if reliability is demonstrated to the trial court. Id. Indiana Evidence Rule 702 provides
that:
(a) If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that
the scientific principles upon which the expert testimony rests are reliable.
In determining whether scientific evidence is reliable, “the trial court must determine
whether such evidence appears sufficiently valid—or, in other words, trustworthy—to
assist the trier of fact.” West, 805 N.E.2d at 913. In so doing, the trial court must make a
preliminary assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid and whether that reasoning or methodology can properly be applied
to the facts in issue. Id.
9
There is no specific test that must be considered in order to satisfy Rule 702(b). Id.
The reliability of such evidence may be established “by . . . a sufficient foundation to
persuade the trial court that the relevant scientific principles are reliable.” Bond v. State,
925 N.E.2d 773, 779 (Ind. Ct. App. 2010), trans. denied.
Our Supreme Court has explained that the factors enumerated in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are helpful in determining whether
evidence is admissible under Indiana Evidence Rule 702(b). Turner v. State, 953 N.E.2d
1039, 1050 (Ind. 2011). The Daubert factors include “whether the scientific theory or
technique (1) can be and has been tested; (2) has been subjected to peer review and
publication; (3) has a known or potential error rate; (4) is governed by maintained standards
controlling its operation; and (5) has gained widespread acceptance in a relevant scientific
community.” Bond, 925 N.E.2d at 779 (citing Daubert, 509 U.S. at 593-94). While all of
these factors and additional factors may be relevant, none alone is dispositive, and not all
of these factors must be present for a trial court to find certain evidence reliable. Id.; see
also McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). “‘The adoption of Rule 702
reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific
evidence.’” Turner, 953 N.E.2d at 1050 (quoting Sears Roebuck & Co. v. Manuilov, 742
N.E.2d 453, 460 (Ind. 2001)). However, the proponent of the scientific evidence bears the
burden of persuading the trial court that it is more likely than not that the scientific
principles upon which the evidence relies are reliable. Burnett v. State, 815 N.E.2d 201,
209 (Ind. Ct. App. 2004).
10
Turning to this case, the State established a sufficient foundation to show that the
Draeger test was reliable. Hailey Newton, an employee of the Laboratory Division of the
Indiana State Police, testified that she conducted a validation study involving the Draeger
test. Tr. p. 81-82. In her study, she tested the instrument for cross-reactivity with over
sixty different types of chemicals and each test produced the expected result. Id. at 86.
She never obtained a false positive, and her results did not differ from the manufacturer’s
own documented testing.6 Id. at 85-86. Newton’s study was presented to the Clandestine
Laboratory Investigating Chemist Association. Id. at 87. Additionally, Newton testified
that the test has been in existence since 1937 and that she was not familiar with any studies
indicating that the test is unreliable. Id. Both Newton and Trooper Royer testified that the
test is used by the Drug Enforcement Agency and the Occupational Safety and Health
Administration. Id. at 18, 87.
We find this case distinguishable from West. In West, this Court determined that
the foundational requirements for the reliability of a Draeger test were not established when
an officer only testified about his training in administering the test and general information
about how he performed the test. West, 805 N.E.2d at 913. Here, however, Newton
testified to additional information regarding the Draeger test’s reliability, including a
validation study she performed and that in every instance the Draeger test results were
exactly as expected. Additionally, she testified that she was not familiar with any study
6
The manufacturer reports that a Draeger test has a standard deviation of ten to fifteen percent, but
this refers to the amount of concentration of the chemical tested. Tr. p. 89. The Draeger test in this case
was used to determine whether the chemical was present in the reaction vessel, not how much of it was
present.
11
since the test was created in 1937 that indicated that the test is unreliable. Her testimony
focused on the reliability of the Draeger test while the officer’s testimony in West did not.
Evans also contends that the State failed to lay a foundation for the specific
instrument used. Appellant’s Br. p. 7. We note that Evans waived this claim because he
did not object to the fact that Trooper Royer never identified the specifications of the
instrument he used to test the green two-liter bottle. Instead, he only objected to the
reliability of the test itself. Tr. p. 5-6; Appellant’s App. p. 71-72. A defendant may not
argue one ground for objection at trial and then raise a new ground for objection on appeal.
Turner, 953 N.E.2d at 1058. Waiver notwithstanding, Trooper Royer testified that each
instrument comes with specific manufacturer instructions. Officers who use the Draeger
test device are trained in accordance with those instructions. Tr. p. 82. Trooper Royer
testified that he followed the manufacturer’s instructions in performing the test. Id. at 133.
Therefore, Trooper Royer’s failure to identify the specifications of the instrument did not
affect the reliability of the test.
Even if the trial court erred by admitting the Draeger test, that error would have
been harmless. An error in the admission of evidence is harmless “when the conviction is
supported by such substantial independent evidence of guilt as to satisfy the reviewing
court that there is no substantial likelihood that the questioned evidence contributed to the
conviction.” Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009). There was overwhelming
evidence that ammonia existed in the reaction vessel. Both Officer Myers and Officer
French smelled ammonia coming from the vent pipe outside the house. Both officers also
testified to an overwhelming smell of ammonia. There were also several independent
12
pieces of evidence that proved Evans was manufacturing methamphetamine, including the
testimony of both Brickey and Pam. Brickey testified that she saw Evans put pills in the
green two-liter bottle and shake it. Tr. p. 192. Pam also testified that she saw Evans
crushing and using the pills. Id. at 261. Additionally, Pam testified that she saw Evans
“burping” the two-liter bottle. Id. at 246, 277. She also saw Evans strip the batteries and
use the cold packs, lye, mason jar, and Coleman camp fuel to make methamphetamine. Id.
at 247-48.
Even without the results of the Draeger test, we are confident that there was
sufficient independent evidence of guilt that a jury still would have found Evans guilty of
Class A felony dealing in methamphetamine for manufacturing methamphetamine within
one-thousand feet of a public park. Appellant’s App. p. 82.
II. Refusal to Tender Jury Instruction
Evans also contends that the trial court erred in refusing to tender his requested jury
instruction. We will only reverse a trial court’s refusal to give a jury instruction if doing
so amounts to an abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct.
App. 2012).
We note that the purpose of jury instructions is “‘to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct verdict.’” Id. (quoting Munford v. State, 923
N.E.2d 11, 14 (Ind. Ct. App. 2010)). In determining whether the trial court abused its
discretion by failing to give an instruction, we consider “‘(1) whether the tendered
instruction correctly states the law; (2) whether there was evidence presented at trial to
13
support giving the instruction; and, (3) whether the substance of the instruction was
covered by other instructions that were given.’” Kane v. State, 976 N.E.2d 1228, 1230-31
(Ind. 2012) (quoting Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001)). We will only
reverse based upon an instructional error if the defendant affirmatively demonstrates that
the error prejudiced his substantial rights. Washington v. State, 840 N.E.2d 873, 888 (Ind.
Ct. App. 2006), trans. denied.
The trial court tendered Instruction No. 14.156 of the Indiana Pattern Jury
Instructions on possession:
The word “possess” means to own or to exert control over. The word
“possession” can take on several different, but related, meanings.
There are two kinds of “possession”: actual possession and
constructive possession. A person who knowingly has direct physical control
of a thing at a given time is then in actual possession of it. A person who,
although not in actual possession, knowingly has both the power and the
intention at a given time to exercise control over a thing, either directly or
through another person or persons, is then in constructive possession of it.
Possession may be sole or joint. If one person alone has actual or
constructive possession of a thing, then possession is sole. If two or more
persons share actual or constructive possession of a thing, then possession is
joint.
Possession may be actual or constructive, and either alone or jointly
with others.
Appellant’s App. p. 32-33; see also Indiana Pattern Jury Instruction No. 14.156—Criminal
(3d ed. 12/2003). Evans submitted the following proposed jury instruction on the issue of
constructive possession:
Possession of something may take two forms. One can possess an
item directly, meaning that he/she has actual physical control over the item.
Or, one can possession [sic] something constructively, meaning that he/she
has the capability and intent to possess the item, even though actual physical
control is absent. Evidence has been presented that other individuals may
have visited at, or resided in, Elizabeth Smith’s home. As such, possession
of those premises was not exclusive to her. When possession of the premises
14
on which drugs or their precursors is not exclusive, the inference of intent to
maintain dominion and control over the items must be supported by
additional circumstances pointing to the accused’s knowledge of the nature
of the drugs and/or precursors and their presence in her home. These
additional circumstances can include incriminating statements the accused
made, attempted flight or furtive gestures, proximity of the substances to the
accused, location of the substances within the accused’s plain view, and the
combining of the substances with other items that the accused owned.
Appellant’s App. p. 59. The court denied Evans’s requested jury instruction because the
trial court was already giving a constructive-possession instruction and because there is a
danger when an instruction calls attention to any one particular circumstance that the jury
might give that circumstance extra weight when it should consider all circumstances. Tr.
p. 317.
Evans concedes that the trial court’s instruction was an accurate statement of the
law and supported by the evidence; however, he contends that the instruction does not
“adequately cover the issue of constructive possession because it contains no factors that
the jury may consider in determining that issue.” Appellant’s Br. p. 10.
We disagree that the trial court’s instruction did not adequately cover the issue of
constructive possession. Evans’s theory of the case was that the suspected one-pot reaction
vessel was already in the basement of the Smith Residence before he arrived that evening.
Tr. p. 341-42. The court’s instruction adequately explains that a person must knowingly
have both the power and the intention at a given time to exercise control over the thing he
possesses. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012) (“In order to
prove constructive possession, the State must show that the defendant has both (1) the
intent to maintain dominion and control and (2) the capability to maintain dominion and
control over the contraband.” (citation omitted)), trans. denied.
15
Instead, the trial court properly denied Evans’s requested instruction because it
unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith
Residence. We have long disapproved of “[i]nstructions that unnecessarily emphasize one
particular evidentiary fact, witness, or phase of the case . . . .” Ludy v. State, 784 N.E.2d
459, 461 (Ind. 2003). Here, by stating in the instruction where the events occurred, the
jury may have been confused about its relevance to the case or given that factor extra
weight in its deliberations regarding possession of the materials to make
methamphetamine.7
Finally, we may reverse a refusal to give a jury instruction only if the defendant
shows that his substantial rights were prejudiced. Washington, 840 N.E.2d at 888. Evans
makes no argument in his brief that his substantial rights were affected by the trial court’s
refusal to tender his proposed jury instruction. See Appellant’s Br. p. 8-10. Evans could
not make this argument because both Brickey and Pam testified that Evans actually
possessed the reaction vessel. Tr. p. 195, 277.
We conclude that the trial court did not abuse its discretion in declining to give
Evans’s proposed jury instruction because the trial court’s instruction adequately covered
the issue of constructive possession and because Evans’s proposed jury instruction
7
Evans argues that his instruction should have been approved because “the factors for consideration
contained in Evans’s tendered instruction are identical to those approved in Speer v. State, 995 N.E.2d 1,
10 (Ind. Ct. App. 2013), trans. denied. We agree with Evans that the description of what is required to
prove constructive possession in Speer is correct and mirrors the language Evans tendered in his proposed
jury instruction. However, Speer does not address the concern of the trial court—that Evans’s proposed
jury instruction unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith
Residence and may cause the jury to give extra weight to that circumstance.
16
unnecessarily emphasized the fact that Elizabeth was the primary leaseholder of the Smith
Residence.
Affirmed.
NAJAM, J., and BROWN, J., concur.
17