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.




Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017         Page 1 of 10
[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).


      Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 2 of 10
      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.)

      Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017              Page 3 of 10
[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

      Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 4 of 10
      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,

      Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 5 of 10
               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


       Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 6 of 10
       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
       Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 7 of 10
       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



       Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 8 of 10
               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


       Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 9 of 10
       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.




       Court of Appeals of Indiana | Memorandum Decision 42A04-1703-CR-606 | December 7, 2017   Page 10 of 10
