MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 28 2020, 10:38 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Clifford M. Robinson                                      Curtis T. Hill, Jr.
The Law Office of                                         Attorney General of Indiana
Clifford M. Robinson, LLC
                                                          Josiah Swinney
Rensselaer, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lavontae Lee,                                             July 28, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-687
        v.                                                Appeal from the Newton Superior
                                                          Court
State of Indiana,                                         The Honorable Daniel J. Molter,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          56D01-1706-F6-85



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020                     Page 1 of 7
[1]   Lavontae Lee appeals his convictions for Level 6 Felony Resisting Law

      Enforcement,1 Class A Misdemeanor Dealing in Marijuana,2 Class B

      Misdemeanor Possession of Marijuana,3 and Class C Misdemeanor Reckless

      Driving.4 He argues that the trial court gave an erroneous jury instruction and

      that the evidence is insufficient to support his conviction for dealing in

      marijuana. Finding no error and sufficient evidence, we affirm.


                                                     Facts
[2]   On June 24, 2017, Newton County Sheriff’s Deputy Jack Fellmy was

      monitoring traffic on a portion of U.S. 41 on which the posted speed limit was

      sixty miles per hour. Deputy Fellmy observed an individual on a motorcycle,

      later identified as Lee, travelling together with a Dodge Charger. The deputy

      noted that the two vehicles were traveling the same speed, the motorcycle was

      right behind the Charger, and the motorcycle was “staying with” the other

      vehicle. Tr. Vol II. p. 34.


[3]   Deputy Fellmy’s radar showed that the Charger was traveling eighty-eight miles

      per hour, so he initiated a traffic stop of both vehicles. Both vehicles stopped,

      but as soon as the deputy stepped out of his vehicle, Lee drove away on the




      1
          Ind. Code § 35-44.1-3-1(a)(3).
      2
          Ind. Code § 35-48-4-10(a)(2).
      3
          I.C. 35-48-4-11(a)(1).
      4
          Ind. Code § 9-21-8-52(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020   Page 2 of 7
      motorcycle. A chase ensued, and Lee reached speeds as high as 130 miles per

      hour. Eventually, Lee lost control of his motorcycle in a ditch. He struggled

      with the officer who approached him, but was eventually contained and

      arrested.


[4]   Another deputy arrived and smelled the odor of raw marijuana emanating from

      the motorcycle. Inside of a compartment directly under the seat, the deputy

      found three separately packaged small baggies containing marijuana and

      another, larger bag of a substance that tested positive for THC. A deputy later

      testified that in his experience, packaging marijuana this way usually indicated

      that it was “for distribution[.]” Id. at 62. The small baggies had Nike Swoosh

      symbols on the outside. Lee told the arresting officer that he had been driving

      to the “US 41 Dragstrip” before he was stopped. Id. at 47.


[5]   Back at the initial stop, the driver of the Charger told the deputy that he had

      been on his way to the “US 41 Motor Speedway[.]” Id. at 32. That driver was

      carrying several small baggies of marijuana. The small bags had Nike Swoosh

      symbols on the outside and were “consistent with dealing illegal drugs.” Id.

      The Charger also held a “bulk bag” of marijuana and a large sum of cash. Id.


[6]   On June 30, 2019, the State charged Lee with Level 6 felony resisting law

      enforcement, Class A misdemeanor dealing in marijuana, Class B misdemeanor

      possession of marijuana, and Class C misdemeanor reckless driving. A jury

      found Lee guilty as charged on October 28, 2019. On March 2, 2020, the trial

      court sentenced Lee to an aggregate eighteen-month term. Lee now appeals.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020   Page 3 of 7
                                   Discussion and Decision
                                         I. Jury Instruction
[7]   First, Lee argues that the trial court gave a fundamentally erroneous jury

      instruction. Instruction of the jury is left to the sound discretion of the trial

      court and we will reverse only if a questioned instruction is erroneous and the

      instructions as a whole misstate the law or otherwise mislead the jury. Munford

      v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).


[8]   The instruction at issue stated as follows: “[t]he flight of a person immediately

      after the commission [sic] for which he is charged, if there was such flight, is a

      circumstance which may be considered by you in connection with all the other

      evidence to aid you in determining his guilt or innocence.” Tr. Vol. II p. 81.

      Lee’s counsel had stated “[n]o objection” in response to this instruction. Id. at

      71. Therefore, Lee must show that the instruction was fundamentally

      erroneous. The fundamental error exception is extremely narrow and applies

      only when the error constitutes a blatant violation of basic principles, the harm

      or potential for harm is substantial, and the resulting error denies the defendant

      fundamental due process and renders a fair trial impossible. Halliburton v. State,

      1 N.E.3d 670, 678 (Ind. 2013).


[9]   Lee directs our attention to Dill v. State, 741 N.E.2d 1230 (Ind. 2001). In that

      case, our Supreme Court considered an “inherently contradictory” jury

      instruction that “simultaneously inform[ed] the jury that a person’s flight after

      the commission of a crime is ‘not proof of guilt’ but yet is ‘evidence of

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020   Page 4 of 7
       consciousness of guilt’ and ‘may be considered.’” Id. at 1232. Ultimately, the

       Dill Court found that the “flight instruction [was] confusing, unduly

       emphasize[d] specific evidence, and [was] misleading” and held that it was

       erroneous to give the instruction. Id. at 1233. In the end, however, the Court

       concluded that the error did not require reversal because “a reasonable jury

       could not properly have acquitted the defendant and would have rendered a

       guilty verdict even if the erroneous flight instruction had not been given.” Id. at

       1234.


[10]   Initially, we note that the instruction in this case is dissimilar enough from the

       confusing instruction in Dill that we do not believe that it was erroneous. Even

       if there was error, however, we would find that the error was harmless given the

       evidence in the record supporting Lee’s guilt:


           • Lee, on his motorcycle, and the other driver, in the Charger, were driving
             in tandem. They were speeding and heading to the same destination.
           • When Lee was finally stopped and arrested, deputies found a large bag of
             marijuana and several small baggies of marijuana that had a Nike
             swoosh on the outside. A deputy testified that this method of packaging
             indicated that the substance was intended for distribution.
           • The driver of the Charger was likewise found to have small baggies of
             marijuana bearing the Nike swoosh. The Charger also held a bulk bag of
             marijuana and a large sum of cash.

       As in Dill, given this record, even if the erroneous flight instruction had not

       been given, we believe that a reasonable jury could not properly have acquitted

       Lee and would have rendered a guilty verdict. Therefore, we decline to reverse

       on this basis.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020   Page 5 of 7
                                              II. Sufficiency
[11]   Next, Lee argues that the evidence supporting his conviction for Class A

       misdemeanor dealing in marijuana is insufficient. When considering a claim of

       insufficient evidence, we will consider only the probative evidence and

       reasonable inferences supporting the verdict. McHenry v. State, 820 N.E.2d 124,

       126 (Ind. 2005). We will neither assess witness credibility nor reweigh the

       evidence, and will affirm if the probative evidence and reasonable inferences

       drawn from that evidence could have allowed a reasonable factfinder to find the

       defendant guilty beyond a reasonable doubt. Id.


[12]   To convict Lee of Class A misdemeanor dealing in marijuana, the State was

       required to prove beyond a reasonable doubt that Lee possessed marijuana,

       with the intent to deliver it. I.C. § 35-48-4-10(a)(2). Lee argues that there is

       insufficient evidence establishing that he had the intent to deliver the marijuana.

       “Intent, being a mental state, can only be established by considering the

       behavior of the relevant actor, the surrounding circumstances, and the

       reasonable inferences to be drawn from them.” Davis v. State, 791 N.E.2d 266,

       270 (Ind. Ct. App. 2003).


[13]   Here, the evidence in the record shows that Lee possessed three small baggies of

       marijuana with Nike swooshes on them and a bulk bag of marijuana. He was

       riding to a racetrack in tandem with another individual, whose vehicle held




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020   Page 6 of 7
       marijuana in the same packaging and a large sum of cash.5 Lee also led police

       on a high-speed chase after he was initially pulled over.


[14]   A deputy testified that, based on his training and experience, marijuana

       packaged in the way it was found in the motorcycle and Charger supports a

       conclusion that Lee intended to deliver the marijuana rather than use it himself.

       See White v. State, 772 N.E.2d 408, 413 (Ind. 2002) (finding that separate plastic

       baggies containing crack cocaine supported inference that defendant intended

       to deliver the drugs). Additionally, the bulk bag of marijuana, Lee’s proximity

       to another driver with similar contraband heading to the same location, and

       Lee’s flight from police supported an inference that Lee intended to deliver the

       drugs. A reasonable factfinder could conclude, based on this evidence, that Lee

       was guilty beyond a reasonable doubt. Lee’s arguments to the contrary amount

       to requests that we reweigh the evidence, which we may not and will not do.

       The evidence is sufficient.


[15]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       5
         Lee argues that evidence related to the Charger’s driver implicated protections afforded to co-defendants in
       joint trials under the Confrontation Clause. Initially, we note that Lee did not object on this basis below.
       Furthermore, there was no joint trial in this case, nor were out-of-court statements made by the other driver
       admitted into evidence. Lee had a full opportunity to cross-examine the detective who testified about the
       situation involving the Charger. Therefore, he is not entitled to relief on this basis.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-687 | July 28, 2020                        Page 7 of 7
