MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Dec 08 2016, 8:53 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                      Gregory F. Zoeller
Keating & LaPlante, LLP                                 Attorney General of Indiana
Evansville, Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Deltrice Watkins,                                       December 8, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A05-1603-CR-625
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable Michael J. Cox
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        82C01-1404-FA-453



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016       Page 1 of 7
[1]   Deltrice Watkins appeals her convictions for two counts of dealing in

      methamphetamine as class A felonies, possession of a schedule III controlled

      substance as a class D felony, and possession of a schedule IV controlled

      substance as a class D felony. Watkins raises one issue which we revise and

      restate as whether the trial court abused its discretion in instructing the jury.

      We affirm.


                                      Facts and Procedural History

[2]   On March 11, 2014, Watkins sold methamphetamine to a confidential

      informant (“C.I.”). On April 9, 2014, the C.I. sent text messages to Watkins,

      asked her if she was coming, and offered to run the money out. Watkins

      arrived at the C.I.’s location, and the C.I. gave Watkins buy money. Watkins

      then left, met with a few people for about two minutes, and proceeded to

      Highway 41.


[3]   Vanderburgh County Sheriff’s Sergeant David Eades observed Watkins

      speeding and conducted a traffic stop on Highway 41. The police discovered

      methamphetamine, hydrocodone, alprazolam, and the buy money in Watkins’s

      vehicle.


[4]   On April 11, 2014, the State charged Watkins with Count I, dealing in

      methamphetamine as a class A felony; Count II, possession of a schedule III

      controlled substance as a class D felony; and Count III, possession of a

      schedule IV controlled substance as a class D felony. On November 11, 2014,




      Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 2 of 7
      the State charged Watkins with Count IV, dealing in methamphetamine as a

      class A felony.


[5]   On February 16 and 17, 2016, the court held a jury trial. During cross-

      examination, Sergeant Eades testified that Watkins claimed she had a bottle for

      Xanax and Lortabs and that he could look at her records and be able to see that

      she was prescribed those medications. Sergeant Eades also testified that to his

      knowledge no one checked to see if she had a prescription. After the State

      rested, the defense did not present any evidence. The court and the parties

      discussed jury instructions. Watkins’s counsel did not object to the instructions

      that were ultimately given to the jury and specifically stated that he agreed that

      instruction No. 3 was correct. Instruction No. 3 stated in part:

              The crime of Possession of a Schedule III Controlled Substance,
              a Class D felony, which was in force at the time of the offense
              charged in Count 2, is defined by law as follows: A person who
              knowingly or intentionally possesses a controlled substance, pure
              or adulterated, classified in Schedule III, except marijuana or
              hashish, commits Possession of a Schedule III Controlled
              Substance, a Class D felony.


              Before you may convict the Defendant of Count 2, the State must
              have proved each of the following beyond a reasonable doubt:


              1. The Defendant


              2. knowingly or intentionally


              3. possessed


      Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 3 of 7
              4. hydrocodone, pure or adulterated,


              5. which the Court instructs you is classified by statute as a
              controlled substance in Schedule III.


              If the State failed to prove each of these elements beyond a
              reasonable doubt, you must find the Defendant not guilty of
              Possession of a Schedule III Controlled Substance, a Class D
              felony, as charged in Count 2.


      Appellant’s Appendix II at 89. The court gave the jury this instruction and also

      instruction No. 4, which addressed Count III, possession of a schedule IV

      controlled substance as a class D felony, and stated that, before the jury could

      convict Watkins, the State must have proved that she knowingly or

      intentionally possessed alprazolam.


[6]   The jury found Watkins guilty as charged. The court sentenced Watkins to

      thirty years for Counts I and IV and 547 days for Counts II and III and ordered

      the sentences to be served concurrent with each other.


                                                  Discussion

[7]   The issue is whether the trial court abused its discretion in instructing the jury.

      Watkins cites Ind. Code § 35-48-4-7 which governs possession of a controlled

      substance and at the time of the offense provided in part that “[a] person who,

      without a valid prescription . . . knowingly or intentionally possesses a

      controlled substance (pure or adulterated) classified in schedule I, II, III, or IV,

      except marijuana, hashish, salvia, or a synthetic cannabinoid, commits


      Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 4 of 7
      possession of a controlled substance, a Class D felony.” 1 She points to the

      testimony of Sergeant Eades in which he stated that he did not check to see

      whether she had a prescription for either Xanax or Lortabs. She contends that

      the omission of the defense of possession of a prescription is key because

      officers admitted that they did not make an attempt to determine whether she

      had a valid prescription and the State conceded that it may not have met a

      burden regarding the possession charges. She acknowledges that the defense

      bore the burden of having to prove the existence of a prescription, but argues

      that the court must instruct the jury on the validity of the defense once the

      defense has asserted the exception.


[8]   The State argues that Watkins waived review of this issue, that she waived her

      claim altogether because she did not allege fundamental error, and that she

      could not show fundamental error even if she alleged it. In reply, Watkins

      asserts that a failure to allege fundamental error does not result in waiver of her

      claim.


[9]   “The existence of a valid prescription for a controlled substance is a defense to

      the crime of possession.” Lundy v. State, 26 N.E.3d 656, 658 (Ind. Ct. App.

      2015) (citing Williams v. State, 959 N.E.2d 360, 363 (Ind. Ct. App. 2012)). The

      defendant bears the burden of proving this defense by a preponderance of the

      evidence. Id.




      1
          Subsequently amended by Pub. L. No. 158-2013, § 633 (eff. July 1, 2014).


      Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 5 of 7
[10]   Ind. Trial Rule 51(C) provides in relevant part:

               At the close of the evidence and before argument each party may
               file written requests that the court instruct the jury on the law as
               set forth in the requests. The court shall inform counsel of its
               proposed action upon the requests prior to their arguments to the
               jury. No party may claim as error the giving of an instruction
               unless he objects thereto before the jury retires to consider its
               verdict, stating distinctly the matter to which he objects and the
               grounds of his objection.


[11]   The Indiana Supreme Court has “construed this requirement rather strictly,

       finding that its ‘purpose is not to create a procedural trap but to enhance trial

       fairness and to enable effective appellate review.’” Bowman v. State, 51 N.E.3d

       1174, 1179 (Ind. 2016) (quoting Scisney v. State, 701 N.E.2d 847, 848 (Ind.

       1998)). “Thus, at a minimum, ‘appellate review of a claim of error in the giving

       of a jury instruction requires a timely trial objection clearly identifying both the

       claimed objectionable matter and the grounds for the objection,’ though

       tendering a proposed alternative instruction is recommended.” Id. (quoting

       Scisney, 701 N.E.2d at 849).


[12]   Watkins did not object to the instructions or tender a relevant jury instruction.

       Accordingly, we cannot say that Watkins preserved this issue for appeal. To

       the extent that Watkins asserts fundamental error in her reply brief, we observe

       that she did not do so in her initial brief and has waived the issue. See id. at

       1179-1180 (holding that the defendant failed to preserve an objection to

       instructions and “also failed to raise the issue of fundamental error in his initial

       appellate brief; we therefore find his claim of error with respect to the lack of an

       Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 6 of 7
       instruction on jury unanimity entirely waived”) (citing Curtis v. State, 948

       N.E.2d 1143, 1148 (Ind. 2011) (“[P]arties may not raise an issue, such as

       fundamental error, for the first time in a reply brief.”)).


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Watkins’s convictions.


[14]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016   Page 7 of 7
