                                                                                             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.


      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015                 Page 1 of 13
      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.

      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015                           Page 2 of 13
              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.

      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015                     Page 3 of 13
[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

      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015      Page 4 of 13
               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.

      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015                           Page 5 of 13
      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
      Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015      Page 6 of 13
       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

       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015   Page 7 of 13
       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.


       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015     Page 8 of 13
               ***
               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


       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015   Page 9 of 13
       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).


       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015    Page 10 of 13
        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




Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015   Page 11 of 13
       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.

       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015                             Page 12 of 13
       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.




       Court of Appeals of Indiana | Opinion 49A02-1502-CR-78 | October 6, 2015   Page 13 of 13
