MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be                                                Aug 20 2020, 8:54 am
regarded as precedent or cited before any
                                                                                         CLERK
court except for the purpose of establishing                                         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
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
                                                         Sierra A. Murray
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Devon Scott Bline,                                       August 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3067
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1904-F3-12487



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020        Page 1 of 11
                                                   Case Summary
[1]   Devon Scott Bline (“Bline”) appeals his conviction, following a jury trial, for

      dealing in methamphetamine, as a Level 2 felony.1 He raises one issue on

      appeal which we restate as whether the trial court abused its discretion when it

      gave the jury an instruction regarding the weight of the methamphetamine.


[2]   We affirm.



                                Facts and Procedural History
[3]   On March 28, 2019, at approximately 3:00 p.m., Officer Daniel Hiser (“Officer

      Hiser”) pulled over Bline’s car for a traffic infraction. Bline was the driver and

      sole occupant of the car, an Impala. As Officer Hiser approached the driver’s

      side of the vehicle, he saw a digital scale in the back seat. When asked for

      identification, Bline handed the officer an identification card. The officer

      recognized that Bline was not the person depicted on the card and asked Bline

      several questions about his identifying information. Bline initially claimed “it

      was him on the ID” card but subsequently admitted that it was not. Tr. at 118.

      Officer Hiser instructed Bline to exit the vehicle, and he placed Bline in




      1
          Ind. Code § 35-48-4-1.1(a)(2), (e)(1).

      Bline was also convicted of possession of a narcotic drug, as a Level 6 felony, I.C. § 35-48-4-6(a), and found
      to be a habitual offender, I.C. § 35-50-2-8(a). However, he does not address either of those dispositions in
      this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020                    Page 2 of 11
      handcuffs. As Bline exited, Officer Hiser observed another black digital scale

      located in the pocket of the driver’s side door.


[4]   Another officer on the scene gathered the vehicle’s VIN number and discovered

      that the Impala was stolen. Officer Hiser then searched the Impala. He

      retrieved the two digital scales he had observed previously and also discovered a

      butane lighter. Officer Hiser noticed that the trim around the gear shift of the

      center console was not attached to the vehicle. He lifted the console and found

      a firearm underneath it. Inside the glove compartment of the vehicle, Officer

      Hiser discovered two aluminum foil wrappers and loose pills. One of the foil

      wrappers contained 27.09 grams of methamphetamine, and the other contained

      2.56 grams of heroin. Officer Hiser also found a roll of aluminum foil on the

      back-seat floorboard. In the trunk of the vehicle, Officer Hiser discovered some

      crushed pills and a bottle of pills prescribed to someone other than Bline.


[5]   The State charged Bline with dealing in methamphetamine as a Level 2 felony,

      among other charges. Bline had a jury trial on November 12, 2019. Prior to

      the presentation of evidence at the trial, the court gave the jury sixteen

      preliminary instructions. Within the instructions, the jury was also told to base

      its decision on the evidence presented and the instructions on the law. The jury

      was told to “consider all of the instructions together. Do not single out any

      certain sentence, or any individual point, or instruction, and ignore the others.”

      Tr. V. I at 104. The jury was also instructed to “fit the evidence presented to

      the presumption the defendant is innocent if you can reasonabl[y] do so.” Id. at

      106.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 3 of 11
[6]   The State presented the testimony of Officer Garland Cooper (“Officer

      Cooper”), an officer with the Indianapolis Metropolitan Police Department

      who works in the Southeast District Narcotics Unit. Officer Cooper has

      specialized training in drug identification and trends such as how drugs are

      manufactured, concealed, and trafficked, the cost of drugs, and the effects of

      drugs. Officer Cooper testified about the drug trends in Indianapolis. He stated

      that baggies and foil are the predominant packaging supplies for heroin, but

      methamphetamine is occasionally packaged in foil as well. Methamphetamine

      is commonly ingested by smoking the drug out of a glass pipe, and butane

      lighters are “consistent with drug use for lighting pipes and bowls.” Id. at 123.


[7]   Officer Cooper also testified about the differences and similarities between drug

      dealers and users. He stated that a person may be a user and dealer of illegal

      drugs at the same time. Dealers will make the most money by selling heroin

      and methamphetamine in one-gram transactions, and a half of a gram to a

      gram is the typical dosage for an individual use of methamphetamine. It is

      typical for drug dealers to carry a gun because robberies are common. It is not

      typical for a drug user to carry a gun. Drug dealers are very concerned with

      weight and will typically weigh out their drugs on digital scales. Drug users are

      not generally concerned with exact weight. Drug dealers often conceal drugs in

      the glove box or center console of a vehicle and will have a way to package the

      drug when sold to individual users. Aluminum foil is one way to package

      drugs. A dealer does not usually possess paraphernalia used for consuming

      drugs. There are different levels of methamphetamine dealers, and low-level or


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 4 of 11
      “street level” dealers tend to buy about one ounce at a time, sell in grams, and

      be more mobile. Tr. V. I at 169. Some low-level dealers may not have a large

      amount of money if they have about an ounce of drugs because they have not

      yet sold much of the drug.


[8]   Officer Cooper also testified that methamphetamine users typically purchase

      and immediately use only one dose at a time and keep paraphernalia, such as a

      pipe or needle, with them to consume the drug. It is not common for users of

      methamphetamine to have a large quantity of the drug with them because users

      generally do not have money to purchase a large amount. Methamphetamine

      users tend to be very active because the drug is a stimulant, and they may have

      missing or discolored teeth and gum disease. Methamphetamine users also

      tend to be very skinny and frail in stature, have open skin wounds, and often

      itch at their skin. Drug users tend to prefer either methamphetamine or heroin;

      it is uncommon to use both.


[9]   After the presentation of evidence, the State requested that the trial court give a

      jury instruction that stated additional evidence, other than weight of the drug, is

      necessary in order to convict the defendant of dealing in methamphetamine.

      Bline objected on the grounds that the instruction was “not an element of

      defense,” “elevat[ed] one fact over the other,” and was not relevant. Tr. V. I at

      200-01, 208-09. The trial court gave the instruction over Bline’s objection. The

      sixteen preliminary instructions were reiterated in writing, and the jury was

      instructed to continue considering them during its deliberations.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 5 of 11
[10]   Twenty final instructions were given which included, in relevant part, the

       following:


               Number 5, … To convict the Defendant, the State must have
               proven each of the following elements beyond a reasonable
               doubt: On or about March 28th, 2019, the Defendant, Devon
               Bline knowingly or intentionally possessed with the intent to
               deliver methamphetamine pure or adulterated, said
               methamphetamine weighing—having a weight of at least 10
               grams. If the State fails to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant, Devon Bline,
               not guilty of dealing in methamphetamine.


                                                       ***


               Number 9, if the amount of methamphetamine is less than 28
               grams, the person may be convicted only if there’s evidence in
               addition to the weight of the drug that the person intended to
               deliver the methamphetamine.


               Number 10, under the laws of this State a person charged with a
               crime is presumed to be innocent. This presumption of innocence
               continues in favor of the Defendant throughout each stage of the
               trial. You should fit the evidence presented to the presumption of
               the Defendant is innocent if you can reasonably do so. If the
               evidence lends itself to reasonable interpretations, you must
               choose the interpretation consistent with the Defendant’s
               innocence….


                                                       ***


               Number 15, your verdict should be based on the law, and the
               facts as you find them….


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 6 of 11
                                                       ***


               Number 17,… In considering any one instruction, you should
               construe it in connection with, and in the light of every other
               instruction given….


       Id. at 213-16; App. at 102, 106-07, 112, 114.


[11]   The jury found Bline guilty of dealing in methamphetamine, as a Level 2

       felony, among other convictions. The trial court entered judgments of

       conviction accordingly. The court held a sentencing hearing on December 4,

       2019, and sentenced Bline to an aggregate term of thirty years in the

       Department of Correction. This appeal ensued.



                                  Discussion and Decision
[12]   The only issue Bline raises on appeal is whether the trial court erred in giving

       the jury instruction number nine, i.e., “if the amount of methamphetamine is

       less than 28 grams, the person may be convicted only if there is evidence in

       addition to the weight of the drug that the person intended to deliver the

       methamphetamine.” Tr. at 213; App. at 106. He contends that instruction

       “misled” the jury because it removed “an element from consideration by the

       jury,” was irrelevant, and “improperly emphasized certain facts,” i.e., that

       twenty-eight grams is the cut-off to strict liability. Appellant’s Br. at 9.


[13]   We review a trial court’s decision to tender or reject a jury instruction for an

       abuse of discretion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 7 of 11
               Under this standard, we look to whether evidence presented at
               trial supports the instruction and to whether its substance is
               covered by other instructions. [Kane v. State, 976 N.E.2d 1228,
               1230-31 (Ind. 2012).] When the appellant challenges the
               instruction as an incorrect statement of law, we apply a de novo
               standard of review. Id. at 1231. We reverse the trial court only if
               the instruction resulted in prejudice to the defendant’s
               “substantial rights.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind.
               2015).


       Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). In reviewing a trial court’s

       decision to give or refuse tendered jury instructions, we consider: (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, 1144 (Ind. 2002). “Absent evidence to the

       contrary, we generally presume the jury follows the trial court’s instructions in

       reaching its determination.” Gibson v. State, 43 N.E.3d 231, 241 n.5 (Ind. 2015).


[14]   Jury instruction number 9 is a correct statement of the law, in summary form.

       Indiana Code Section 35-48-4-1.1 states, in relevant part:


               (a) A person who:


                                                       ***


                        (2) possesses, with intent to:


                                (A) deliver … methamphetamine, pure or
                                adulterated;

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 8 of 11
               commits dealing in methamphetamine…


               (b) A person may be convicted of an offense under subsection
               (a)(2) only if:


                        (1) there is evidence in addition to the weight of the drug
                        that the person intended to deliver … the drug; or


                        (2) the amount of the drug involved is at least twenty-eight
                        (28) grams.


                                                       ***


               (e) The offense is a Level 2 felony if:


                        (1) the amount of the drug involved is at least ten (10)
                        grams …


[15]   Moreover, there was evidence in the record to support giving instruction

       number nine. Officer Hiser testified that he found the methamphetamine,

       scales, and aluminum foil in Bline’s vehicle, and Bline was the sole occupant of

       that vehicle. State’s Exhibit 32, admitted by stipulation, is a laboratory report

       stating that the methamphetamine found in Bline’s car weighed 27.09 grams.

       And Officer Cooper testified that, based on his specialized training and

       experience related to drug trends, the circumstances surrounding the discovery

       of the methamphetamine in Bline’s car were indicative of dealing—rather than

       just using—the drug.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 9 of 11
[16]   While the reference to twenty-eight grams may have been irrelevant since the

       amount here was below twenty-eight grams, and the relevant portions of

       instruction number 9 may have been covered by other instructions, such as

       instruction number 5, Bline has failed show any harm from the inclusion of jury

       instruction number 9. His contention that the instruction “misled” the jury by

       emphasizing the weight of twenty-eight grams is incorrect; the instruction

       emphasized weight less than twenty-eight grams. Nor did instruction 9 remove

       any element of the offense, as Bline asserts; rather, the instruction specifically

       stated that the State must prove possession with intent to deliver in addition to

       the weight of the drug.


[17]   Bline has offered no evidence to rebut our assumption that the jury followed the

       trial court’s instructions in reaching its decision. Gibson, 43 N.E.3d at 241 n.5.

       And we discern no prejudice to Bline’s “substantial rights” from the inclusion

       of instruction number 9.2 Batchelor, 119 N.E.3d at 554; see also Ind. Trial Rule

       61. Rather, if the instruction had any effect on the jury, it would have been to

       Bline’s advantage as the instruction specifically provided that he could only be

       convicted if there was evidence of intent to deliver “in addition to the weight”

       where the drug weighs less than twenty-eight grams. App. at 106 (emphasis




       2
         Bline cites no authority for his contention that, “[i]n cases less than 28 grams, th[e] juxtaposition between
       10 and 28 grams creates an evidentiary spectrum requiring the State to produce less and less evidence the
       closer the weight comes to 28 grams.” Appellant’s Br. at 14. Therefore, he waives that argument. Ind. App.
       R. 46(A). Waiver notwithstanding, we note that his contention conflicts with the plain language of Indiana
       Code Section 35-48-4-1.1(b).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020                  Page 10 of 11
       added). Thus, even if the trial court erred in giving instruction 9, we will not

       reverse its decision because the error was harmless.


[18]   Affirmed.


       Vaidik, J., and Baker, S.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020   Page 11 of 11
