MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Feb 13 2019, 8:50 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Dunkerson,                                      February 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1881
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Richard Hagenmaier,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1704-F2-15327



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019               Page 1 of 11
                                              Case Summary
[1]   Nicholas Dunkerson (“Dunkerson”) appeals his convictions,1 following a jury

      trial, for dealing methamphetamine, as a Level 2 felony,2 and possessing

      methamphetamine, as a Level 3 felony.3


[2]   We affirm.



                                                    Issues
[3]   Dunkerson raises the following two restated issues:


                 1.        Whether the State presented sufficient evidence to support
                           his convictions for dealing methamphetamine and
                           possessing methamphetamine.


                 2.        Whether the trial court committed reversible error when it
                           failed to instruct the jury regarding a reasonable theory of
                           innocence.


                                 Facts and Procedural History
[4]   At approximately 3:00 a.m. on April 23, 2017, Indianapolis Police Officer

      David Williams (“Officer Williams”) was dispatched to investigate a report of a




      1
        Dunkerson was also convicted of resisting law enforcement, as a Class A misdemeanor. Ind. Code § 35-
      44.1-3-1(a)(3). He does not appeal that conviction.
      2
          I.C. § 35-48-4-1.1(a)(2), (e)(1).
      3
          I.C. § 35-48-4-6.1(a), (d)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019            Page 2 of 11
      disturbance. By the time police arrived, the altercation was over, and the

      suspect had left the scene. However, individuals at the scene informed the

      officers that one of the individuals who had fled the scene was possibly suicidal,

      and they described him as a white young man wearing a black shirt.


[5]   As he was patrolling the area looking for the young man, Officer Williams saw

      a white male in a black t-shirt—later identified as Dunkerson—talking to a

      woman who appeared to be crying and in distress in the parking lot of a gas

      station. Dunkerson and the woman—later identified as Kristin McCoy

      (“McCoy”)—were standing on either side of a parked Toyota Camry. Officer

      Williams pulled into the gas station, parked, stepped out of his patrol car, and

      asked Dunkerson what he was doing. Officer Williams then turned his

      spotlight toward Dunkerson, and Dunkerson immediately ducked down behind

      the Camry.


[6]   Officer Williams was still able to partially see Dunkerson through the windows

      of the Camry, and he saw that Dunkerson had his right hand in his jacket

      pocket. Dunkerson did not say anything. While still ducking down behind the

      Camry, Dunkerson shuffled back and forth from the front right side of the car to

      the middle of the car. Dunkerson looked directly into Officer Williams’s eyes

      as he shuffled about. After about fifteen seconds of this behavior, Dunkerson

      moved toward the front of the car and suddenly took off running toward the

      front door of the gas station. As Dunkerson fled, Officer Williams ordered him

      to stop, but Dunkerson did not. Therefore, Officer Williams followed

      Dunkerson into the gas station store.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 3 of 11
[7]   Officer Williams located Dunkerson crouching down between two aisles inside

      the store. He ordered Dunkerson to show his hands and Dunkerson complied.

      Officer Williams then approached Dunkerson, turned him around, and tried to

      handcuff his hands behind his back. Dunkerson stiffened his right arm and

      turned around to face Officer Williams “as if he was going to run or fight

      [him].” Tr. at 101. Officer Williams then pressed on Dunkerson’s chest to

      force him off balance, thereby regaining control of Dunkerson’s hands, and

      placed Dunkerson in handcuffs. He then patted Dunkerson down for weapons

      and found none.


[8]   Officer Williams then walked Dunkerson outside and retraced Dunkerson’s

      steps from the store entry back to the front right side of the Camry. Less than

      one minute had passed since Dunkerson had initially run into the gas station

      store. McCoy was still standing in the same general area where she had been

      standing when Officer Williams entered the store, which was on the left side of

      the Camry—i.e., the opposite side of the Camry from where Dunkerson had

      been ducking before he ran into the store. McCoy had shifted slightly toward

      the door of the store, which meant that she had moved further from the side of

      the car where Dunkerson had been crouching.


[9]   After he walked back to the Camry, Officer Williams saw a small plastic baggie

      between the curb of the sidewalk and the front right tire of the Camry. The bag

      contained five smaller, knotted plastic bags that each contained

      methamphetamine. The total amount of methamphetamine contained in the

      bags was over thirty-three grams. As Officer Williams picked up the bag and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 4 of 11
       examined it, Dunkerson repeatedly stated that “it wasn’t his.” Tr. at 103.

       Officer Williams later found $130 in cash in a search of Dunkerson’s person,

       but he did not find any paraphernalia for the consumption of

       methamphetamine.


[10]   The State charged Dunkerson with dealing in methamphetamine, as a Level 2

       felony; possession of methamphetamine, as a Level 3 felony; and resisting law

       enforcement, as a Class A misdemeanor. Following a jury trial held on June

       21, 2018, the jury found Dunkerson guilty as charged. On July 13, the trial

       court sentenced Dunkerson to seventeen years, with seven years suspended, for

       dealing methamphetamine and concurrent terms of seven years for possession

       of methamphetamine and one year for resisting law enforcement. This appeal

       ensued.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[11]   Dunkerson challenges the sufficiency of the evidence to support his convictions

       for dealing and possessing methamphetamine. Our standard of review of the

       sufficiency of the evidence is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 5 of 11
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the

       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied; see also Whitney v.

       State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000) (quotation and citation

       omitted) (“Where the evidence of guilt is essentially circumstantial, the

       question for the reviewing court is whether reasonable minds could reach the

       inferences drawn by the jury; if so, there is sufficient evidence.”).


[12]   To support Dunkerson’s conviction of possession of methamphetamine, as a

       Level 3 felony, the State was required to prove that Dunkerson (1) knowingly or

       intentionally (2) possessed methamphetamine (3) in an amount equal to at least

       twenty-eight grams. I.C. § 35-48-4-6.1(a), (d)(1). A conviction for possession

       may rest on evidence which shows either actual or constructive possession.

       Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). A person actually possesses

       contraband when he or she has direct physical control over it. Id. A person

       constructively possesses contraband when “the person has (1) the capability to

       maintain dominion and control over the item; and (2) the intent to maintain

       dominion and control over it.” Id. (citation omitted). Sometimes the same

       circumstantial evidence may be sufficient to establish constructive possession or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 6 of 11
       to support an inference of actual possession. State v. Hill, 688 N.E.2d 1280,

       1283 (Ind. Ct. App. 1997) (holding circumstantial evidence that a handgun was

       laying on the back seat of a vehicle next to the defendant was sufficient to

       establish constructive possession and/or to support an inference of actual

       possession), trans. denied.


[13]   Here, the State provided sufficient circumstantial evidence from which the jury

       could infer that Dunkerson actually possessed the methamphetamine.4 The

       evidence established that: Dunkerson behaved in a suspicious manner when

       approached by Officer Williams—i.e., he ducked down behind a car; Officer

       Williams observed Dunkerson put his hand in his pocket; Dunkerson bent

       down next to the place where the drugs were eventually found, and then ran

       from police; there was no evidence that, for the duration of the confrontation,

       anyone else was near the place where the drugs were found; Dunkerson

       continued to hide from police while in the store; Dunkerson resisted being

       handcuffed; and Dunkerson repeatedly stated the drugs were not his, before

       anyone even questioned him about them. From all of this circumstantial

       evidence, the jury could reasonably infer that Dunkerson actually, knowingly

       possessed the drugs.5 See, e.g., Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015)

       (noting that evidence of flight and attempts to avoid arrest may be




       4
         Dunkerson does not dispute that the amount of the methamphetamine was greater than twenty-eight
       grams.
       5
         This same circumstantial evidence is also sufficient to show that Dunkerson constructively possessed the
       drugs; i.e., that he had the capability and intent to maintain dominion and control over them.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019               Page 7 of 11
       circumstantial evidence “tend[ing] to show guilt”); see also Hayes v. State, 876

       N.E.2d 373, 375-76 (Ind. Ct. App. 2007) (finding sufficient circumstantial

       evidence to infer actual possession of drugs where the officer observed

       defendant reach down into bin where drugs were later found and then flee from

       the officer), trans. denied. Dunkerson’s contentions to the contrary are simply

       requests that we reweigh the evidence, which we cannot do. Clemons, 996

       N.E.2d at 1285. There was sufficient evidence to support the possession

       conviction.


[14]   To support Dunkerson’s conviction for dealing in methamphetamine, as a

       Level 2 felony, the State was required to prove that Dunkerson (1) possessed

       methamphetamine (2) in an amount equal to at least ten grams (3) with the

       intent to deliver it, and (4) either the amount of methamphetamine was equal to

       at least twenty-eight grams or there was evidence in addition to the weight of

       the drug that Dunkerson intended to deliver it. I.C. § 35-48-4-1.1(a), (b), (e).

       As previously noted, there was sufficient circumstantial evidence that

       Dunkerson possessed the drugs. And there was also sufficient circumstantial

       evidence to establish that Dunkerson intended to deliver the drugs. “The

       possession of a large amount of narcotics is circumstantial evidence of intent to

       deliver.” Adamov v. State, 536 N.E.2d 281, 283 (Ind. 1989). It is undisputed

       that the amount of methamphetamine at issue in this case weighed well above

       the ten grams required to prove dealing as a Level 2 felony and also above the

       twenty-eight grams required to prove intent to deliver based solely on the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 8 of 11
       weight of the drugs. I.C. § 35-48-4-1.1(b). Therefore, there was sufficient

       evidence to support Dunkerson’s dealing conviction.


                                           Jury Instructions
[15]   Dunkerson challenges the trial court’s denial of his request to include the

       “reasonable theory of innocence” language in the jury instruction regarding

       circumstantial evidence.


                Because instructing the jury is a matter within the sound
                discretion of the trial court, we will reverse a trial court’s decision
                to tender or reject a jury instruction only if there is an abuse of
                that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
                2013). We determine whether the instruction states the law
                correctly, whether it is supported by record evidence, and
                whether its substance is covered by other instructions. Id. at 345–
                46. “Jury instructions are to be considered as a whole and in
                reference to each other; error in a particular instruction will not
                result in reversal unless the entire jury charge misleads the jury as
                to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344
                (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196
                (Ind. 1996)).


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). Moreover, we will disregard

       an instruction error as harmless unless it affects the substantial rights of a party.

       Ind. Trial Rule 61. “Errors in the giving or refusing of instructions are harmless

       where a conviction is clearly sustained by the evidence and the jury could not

       properly have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233 (Ind.

       2001).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019   Page 9 of 11
[16]   It is clear that a “reasonable theory of innocence” instruction should be given to

       the jury when the only evidence of the commission of the crime is

       circumstantial. Hawkins v. State, 100 N.E.3d 313, 316 (Ind. Ct. App.) (citing

       Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012)); see also 2 Indiana Judges

       Association, Indiana Pattern Jury Instructions—Criminal, 4th Ed., 13.1000

       (Matthew Bender). The specific language approved in Hampton when the “actus

       reus,” i.e., conduct required to commit the crime, is established solely by

       circumstantial evidence is: “In determining whether the guilt of the accused is

       proven beyond a reasonable doubt, you should require that the proof be so

       conclusive and sure as to exclude every reasonable theory of innocence.” 961

       N.E.2d at 491. This instruction may be placed in either the circumstantial

       evidence instruction or the reasonable doubt instruction. Hawkins, 100 N.E.3d

       at 318 n.6.6


[17]   Here, as we concluded above, the only evidence of Dunkerson’s actus reus—i.e.,

       possessing the large amount of drugs—is circumstantial. Therefore, the trial

       court was required to give the jury the reasonable theory of innocence

       instruction,7 the substance of which was not covered by the other instructions




       6
         In arguing that the reasonable theory of innocence language may only be given in the reasonable doubt
       instruction, State’s Br. at 15 n.3, the State apparently misreads footnote 6 of the Hawkins decision, which
       states: “We note that the reasonable theory of innocence instruction could be placed in the instruction on
       direct and circumstantial evidence, as Hawkins requested, or in the reasonable doubt instruction, as the
       Indiana Pattern Jury Instructions, Criminal, suggest.” 100 N.E.3d at 318.
       7
         The trial court was not required to give the reasonable theory of innocence language specifically proposed
       by Dunkerson; as the State notes, the Hampton court disapproved of the confusing wording “proof of guilt by
       circumstantial evidence only,” which was the wording proposed by Dunkerson. Hampton, 961 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019                Page 10 of 11
       given. However, the trial court’s error in failing to give that instruction was

       harmless, as Dunkerson’s convictions were clearly sustained by the evidence

       and a reasonable jury could not properly have found otherwise. Dill, 741

       N.E.2d at 1233.



                                                 Conclusion
[18]   The State provided sufficient evidence to support Dunkerson’s convictions for

       possessing and dealing methamphetamine. And, although the trial court

       erroneously failed to give the jury a reasonable theory of innocence instruction,

       that error was harmless.


[19]   Affirmed.


       Bradford, J., and Brown, J., concur.




       489-90. However, the trial court was required to give the correctly worded reasonable theory of innocence
       instruction, as outlined in Hampton. Hawkins, 100 N.E.3d at 316.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019             Page 11 of 11
