MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Apr 09 2018, 6:49 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
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Toya K. Radford,                                         April 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2273
        v.                                               Appeal from the Marion Superior
                                                         The Honorable Alicia A. Gooden,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      The Honorable Jennifer L. Haley,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1606-F2-21068



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018        Page 1 of 12
                                        Statement of the Case
[1]   Toya Radford appeals his conviction for dealing in cocaine, as a Level 2 felony,

      following a jury trial. He presents two issues for our review:


              1.       Whether the State presented sufficient evidence to support
                       his conviction.

              2.       Whether the trial court committed fundamental error
                       when it instructed the jury.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 26, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Detective Dennis Wilkes and other IMPD officers executed a search warrant

      for 2919 East North Ralston in Indianapolis. When the officers arrived, they

      saw a young man, later identified as Radford’s fifteen-year-old stepson, inside a

      window at the front of the house, and they asked him to let them inside. He

      refused, and the officers forced their way into the house. Inside, officers found

      two occupants, Radford’s stepson and an unidentified adult male. Shortly after

      making their entry, officers apprehended Radford and another man, who were

      in the backyard.


[4]   Detective Wilkes read aloud the search warrant and Miranda rights for Radford

      and the other occupants. Radford stated that he lived at the residence with his

      brother and that Radford’s stepson stayed there on occasion. Officers then

      began to search the one-story, three-bedroom residence. In one bedroom that

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 2 of 12
      contained several personal items belonging to Radford, officers found a gun

      under the mattress and a magazine for the gun. In a kitchen cabinet, officers

      found a cooler containing thirteen grams of cocaine, a digital scale, baggies, and

      cash. After the officers had discovered the cocaine and other items in the

      kitchen but continued to search the residence, Detective Wilkes and Officer

      Craig McElfresh heard Radford say, “You all have found all I got.” Tr. Vol. II

      at 106. Then, when officers searched Radford’s person, they found $700 in cash

      in his pocket.


[5]   The State charged Radford with dealing in cocaine, as a Level 2 felony, and

      possession of cocaine, as a Level 3 felony. During a phone call with his

      girlfriend while he was in jail, Radford stated, “I didn’t really have s*** though

      . . . . It ain’t really that bad as you probably was thinking it is. Probably like a

      C, C felony.” State’s Ex. 29. The State dismissed the possession charge prior

      to trial. A jury found Radford guilty of dealing in cocaine, as a Level 2 felony,

      and the trial court entered judgment and sentence accordingly. This appeal

      ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[6]   Radford contends that the State presented insufficient evidence to support his

      conviction. In reviewing the sufficiency of the evidence, we consider only the

      evidence and reasonable inferences most favorable to the conviction, neither

      reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 3 of 12
      N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

      fact-finder could find the defendant guilty. Id.


[7]   Radford’s sole contention on appeal is that the State did not present evidence

      that he constructively possessed the cocaine. Evidence of constructive

      possession is sufficient if the State shows that the defendant had both the

      capability and the intent to maintain dominion and control over the

      contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). Where, as

      here, a person’s control over the premises where contraband is found is non-

      exclusive, intent to maintain dominion and control may be inferred from

      additional circumstances that indicate that the person knew of the presence of

      the contraband. Id. at 574. Additional circumstances may include: (1)

      incriminating statements by the defendant; (2) attempted flight or furtive

      gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the

      drugs or weapons; (5) drugs or weapons in plain view; and (6) location of the

      drugs or weapons in close proximity to items owned by the defendant. Id.


[8]   Here, the evidence shows that, after officers had searched the kitchen and found

      the cocaine in the kitchen cabinet, Radford told officers, “You all have found

      all I got.” Tr. Vol. II at 106. And, while he was in jail, Radford made

      statements during a phone call with his girlfriend acknowledging possession of

      enough cocaine to support a Class C felony. Those are incriminating

      statements supporting a finding of constructive possession. In addition, the

      State presented evidence of a drug manufacturing setting, namely, a large

      amount of cocaine and cash, a digital scale, and baggies, which is another

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 4 of 12
       factor showing constructive possession. See Jones v. State, 807 N.E.2d 58, 65

       (Ind. Ct. App. 2004), trans. denied. Radford’s contentions on appeal amount to

       a request that we reweigh the evidence, which we cannot do. The State

       presented sufficient evidence to support his conviction for dealing in cocaine.


                                        Issue Two: Jury Instructions

[9]    Radford contends that the trial court committed fundamental error when it

       instructed the jury. In particular, Radford maintains that the “jury instructions

       misled the jury by repeatedly suggesting the wrong mens rea and by failing to

       inform the jury of a statutory limitation on how the State could prove intent.”

       Appellant’s Br. at 13. We cannot agree.


[10]   Our Supreme Court set out the applicable standard of review as follows:


               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)).

               Where, as here, the defendant failed to preserve an alleged
               instructional defect, the objection is waived, and reversal is
               warranted only in instances of fundamental error. Wright v. State,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 5 of 12
               730 N.E.2d 713, 716 (Ind. 2000). “Error is fundamental if it is ‘a
               substantial blatant violation of basic principles’ and where, if not
               corrected, it would deny a defendant fundamental due process.”
               Id. (quoting Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998)).
               This exception to the general rule requiring a contemporaneous
               objection is narrow, providing relief only in “egregious
               circumstances” that made a fair trial impossible. Halliburton v.
               State, 1 N.E.3d 670, 678 (Ind. 2013).


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


[11]   The State charged Radford with dealing in cocaine, as a Level 2 felony, under

       Indiana Code Section 35-48-4-1 (2015), which provided in relevant part that


               (a) A person who:

                                                        ***

                        (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 Level 5 felony,
               except as provided in subsections (b) through (e).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 6 of 12
               (b) A person may be convicted of an offense under subsection
               (a)(2) only if there is evidence in addition to the weight of the
               drug that the person intended to manufacture, finance the
               manufacture of, deliver, or finance the delivery of the drug.

                                                       ***

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

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

                        (2) the amount of the drug involved is at least five (5)
                        but less than ten (10) grams and an enhancing
                        circumstance applies.


[12]   Radford contends that three jury instructions were given in error: Preliminary

       Instruction No. 4, and Final Instructions Nos. 2 and 3, which read as follows:


               Preliminary Instruction No. 4:

               In this case, the State of Indiana has charged the Defendant with
               Count I: Dealing in Cocaine. The charge reads as follows:

               COUNT I

               On or about May 26, 2016, Toya K. Radford, did knowingly or
               intentionally possess with the intent to deliver cocaine, pure or
               adulterated, weighing at least 10 grams.

               The Defendant has entered a plea of not guilty.

               Upon the issues thus joined, the burden rests upon the State of
               Indiana to prove to each of you, beyond a reasonable doubt,
               every essential element of the charge contained in the
               information. The information, which has been filed against the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 7 of 12
        Defendant, is merely the formal method of charging him and the
        charge.

                                                ***

        Final Instruction No. 2

        COUNT I

        The Defendant is charged in Count I with the offense of Dealing
        in Cocaine, which is defined by statute as follows:

        A person who knowingly possesses with the intent to deliver
        cocaine, pure or adulterated, in an amount at least 10 grams or
        more commits Dealing in Cocaine.

        To convict the Defendant of Count I, the State must have proved
        each of the following beyond a reasonable doubt:

        1. On or about May 26, 2016

        2. The Defendant, Toya K. Radford,

        3. Knowingly

        [4]. Possessed

        [5]. With the intent to deliver

        [6]. Cocaine, pure or adulterated,

        [7]. Said cocaine having a weight of 10 grams or more

        If the State fails to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant, Toya K.
        Radford, not guilty of Dealing in Cocaine.


Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 8 of 12
                                                       ***

               Final Instruction No. 3

               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. Vol. II at 71, 83-84.


[13]   Radford maintains that Preliminary Instruction No. 4 and Final Instruction No.

       2 “confused and misl[ed]” the jury on the mens rea required to convict him.

       Appellant’s Br. at 20. And he maintains that Final Instruction No. 3, which

       defined “knowingly,” further confused the jury on mens rea.


[14]   In particular, Radford contends that the trial court did not instruct the jury that

       the State had to prove that he had the specific intent to deliver cocaine.

       Radford also contends that Final Instruction No. 2 “made no mention of the

       statutory limitation on how the State can prove intent” which “failed to inform

       the jury of what evidence the State was required to present in order to obtain a

       conviction.” Id. at 22. Radford asserts that, “[b]ecause of these errors, the

       instructions as a whole misstated the law and misled the jury.” Id. at 14. And

       he states that “the errors rise to the level of fundamental error because they are

       relevant to the central issue in the case—whether Radford constructively

       possessed the cocaine with the intent to deliver.” Id.


[15]   In support of his contentions, Radford states that these mens rea issues “are

       similar to those in the Spradlin[ v. State, 569 N.E.2d 948 (Ind. 1991)] line of

       attempted murder cases.” Id. at 18. Under the Spradlin rule, a jury “should not
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 9 of 12
       be instructed that a ‘knowing’ mens rea is sufficient to establish guilt of

       attempted murder, and our supreme court has found fundamental error and

       reversed attempted murder convictions where the jury was instructed that it

       could convict of attempted murder based on a ‘knowing’ mens rea.” Clay v.

       State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002). “However, error in an attempted

       murder instruction does not rise to the level of fundamental error where either

       1) the instructions as a whole sufficiently inform the jury of the requirement of

       intent to kill; and/or 2) the intent of the perpetrator was not a central issue at

       trial.” Id.


[16]   In McKinley v. State, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015), trans. denied, this

       court addressed the same argument that Radford makes, namely, that a Spradlin

       error had occurred where the term “knowingly” was included in a jury

       instruction on the elements of possession of cocaine with intent to deliver. The

       defendant in McKinley, like Radford, had not objected to the alleged erroneous

       jury instructions and argued fundamental error. We held in relevant part as

       follows:


               assuming “knowingly” should not be included in a jury
               instruction on the elements of possession with intent to deliver, []
               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-

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 10 of 12
               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.

               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 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.


       Id. at 31.


[17]   Radford attempts to distinguish the facts of this case from those in McKinley. In

       particular, he claims that, where McKinley had actual possession of cocaine,

       the State had to prove that Radford constructively possessed the cocaine found in

       his kitchen, which he shared with other residents. But we are not persuaded

       that that distinction warrants a different conclusion on the issue of fundamental

       error. Here, again, the State presented sufficient evidence that Radford

       possessed the cocaine. The trial court instructed the jury that the State had to

       prove that Radford had intent to deliver the cocaine. And the State presented

       evidence that the amount of cocaine, along with the digital scale, baggies, gun,

       and large amount of cash proved Radford’s intent to deal.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 11 of 12
[18]   The State argues that because the evidence “overwhelmingly proved an intent

       to deliver . . . the injection of a ‘knowingly or intentionally’ mens rea element

       into the instructions is harmless and does not amount to fundamental error.”

       Appellee’s Br. at 18. We agree. 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.

       Indeed, Radford’s defense at trial was that he did not possess the cocaine, so his

       intent to deliver was not a central issue at trial. We hold that the trial court did

       not commit fundamental error when it instructed the jury.


[19]   Finally, Radford contends that the trial court committed fundamental error

       when it did not “inform the jury that it could not rely exclusively on the weight

       of the cocaine to infer Radford’s intent.” Appellant’s Br. at 24. While that is

       an element of the charged offense, there is no evidence that the jury was

       instructed, or that the State suggested, that the jury could rely exclusively on the

       weight of the cocaine to infer Radford’s intent. Indeed, the State presented

       testimony that the amount of cocaine, along with the digital scale, baggies, gun,

       and large amount of cash all together proved Radford’s intent to deal. We

       cannot say that the trial court committed fundamental error when it instructed

       the jury.


[20]   Affirmed.


       Robb, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018   Page 12 of 12
