                                                          FILED
FOR PUBLICATION                                        Mar 07 2012, 8:53 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

PAULA M. SAUER                               GREGORY F. ZOELLER
Danville, Indiana                            Attorney General of Indiana

                                             NICOLE M. SCHUSTER
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

ANGELA C. GARRETT,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
             vs.                             )      No. 32A05-1105-CR-239
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                   APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable Mark A. Smith, Judge
                              Cause No. 32D04-0901-FA-1


                                   March 7, 2012

                            OPINION – FOR PUBLICATION


MAY, Judge
          Angela Garrett appeals her conviction of dealing methamphetamine, a Class A felony.1

She argues the trial court should have instructed the jury on the lesser-included offense of

possession of methamphetamine. We reverse and remand.

                               FACTS AND PROCEDURAL HISTORY

          Police stopped a car in which Garrett was a passenger. The driver, Jay Haines, told

police he had smoked marijuana that day and gave police an ashtray with the remains of

several marijuana cigarettes. As police removed Garrett from the car, she told police there

was a gun between the passenger seat and the center console. Police patted down Garrett and

found two bundles of cash totaling $4,500. In her purse they found a gun, two scales, small

plastic baggies, and material with which to cut the methamphetamine in order to increase its

volume.       A small pouch next to her purse contained about twenty-six grams of

methamphetamine in three baggies, a pipe, a scale, and more small baggies. Another gun

was found in the trunk.

          Garrett and Haines were taken to the county jail where Garrett told a detective all the

seized property belonged to her. Haines was released, but Garrett was charged with Class A

felony dealing methamphetamine and Class A misdemeanor carrying a handgun without a

license.2 At trial Garrett testified Haines, and not she, was the drug dealer, and Haines had

been physically abusive and had threatened to hurt her and her children if she did not tell

police the drugs and weapons were hers. She testified she knew Haines was a drug dealer


1
    Ind. Code § 35-48-4-1.1.
2
    Ind. Code § 35-47-2-1.

                                                 2
and she carried some items in her purse even though they were not hers. She asked that the

jury be instructed on the lesser-included offense of possession of methamphetamine, but the

judge declined to so instruct the jury. The jury found Garrett guilty on both counts.

                                  DISCUSSION AND DECISION

        1.       Waiver

        The State first argues Garret waived her challenge to the court’s decision not to

instruct on possession of methamphetamine because she did not submit a written instruction

for the trial court to review. We decline to find waiver under the circumstances presented

here.

        When the asserted error is declining to give an instruction, “a tendered instruction is

necessary to preserve error because, without the substance of an instruction upon which to

rule, the trial court has not been given a reasonable opportunity to consider and implement

the request.” Mitchell v. State, 742 N.E.2d 953, 955 (Ind. 2001) (quoting Scisney v. State,

701 N.E.2d 847, 848 n. 3 (Ind. 1998) (distinguishing between not giving an instruction and

giving an erroneous one). Failure to tender an instruction generally results in waiver of the

issue for review. Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002).

        We decline the State’s invitation to deprive Garrett of her appeal on that ground, as it

is apparent from the record that the trial court, in fact, had a reasonable opportunity to

consider and implement her request for the instruction.3 Counsel for Garrett engaged in a


3
 As explained below, it appears the trial court misunderstood certain aspects of the possession statute – but it
undoubtedly had a “reasonable opportunity to consider” the request for the instruction.

                                                       3
lengthy conversation with the deputy prosecutor and the court about Garrett’s request for a

lesser-included offense instruction, and it is apparent from the record the trial court

understood the request and was able to consider it fully. As the purpose of the waiver rule is

not served by applying it in this case, we choose to decide this appeal on the merits. See

McDowell v. State, 885 N.E.2d 1260, 1262 (Ind. 2008) (finding no waiver even though

objection was not sufficiently specific, because Court had “the benefit of an ensuing colloquy

between the trial court and counsel, which informs us that the trial judge gave specific

consideration to whether the proposed instruction was a correct statement of law”).

        2.       Serious Evidentiary Dispute

        The trial court should have given a lesser-included offense instruction because there

was a serious evidentiary dispute about whether Garret had intent to deal methamphetamine.

        In Wright v. State, 658 N.E.2d 563 (Ind. 1995), our Indiana Supreme Court developed

a three-part test that trial courts should perform when asked to instruct a jury on a lesser-

included offense of the crime charged. Only the third part of the Wright test is at issue in this

appeal: whether the evidence presented by both parties reveals a serious evidentiary dispute

about the element or elements distinguishing the greater offense from the lesser offense4 such




4
  The State acknowledges Garrett presents an evidentiary dispute, but asserts Garrett denied possessing the
methamphetamine; rather, the State asserts, any evidentiary dispute is “directed not to the distinguishing
element between dealing and possession, but to her participation in any crime at all.” (Br. of Appellee at 12.)
We disagree with that characterization of the evidence. Methamphetamine was found in a make-up bag next to
Garrett’s purse, and Garrett knew the methamphetamine was there. There was evidence Garrett had at least
constructive possession of the methamphetamine, and there was an evidentiary dispute as to whether she
intended to deal it.
                                                      4
that, in view of this dispute, a jury could conclude the lesser offense was committed but not

the greater. Id. at 567.

       If there is such an evidentiary dispute, a trial court commits reversible error if it does

not give the requested instruction on an inherently or factually included offense. Id.

“[W]hen the question to instruct on a lesser included offense is a close one, it is prudent for

the trial court to give the instruction and avoid the risk of the expense and delay involved in a

retrial.” Griffin v. State, 644 N.E.2d 561, 563 (Ind. 1994), overruled on other grounds by

Watts v. State, 885 N.E.2d 1228 (Ind. 2008).

       We review for an abuse of discretion a trial court’s factual finding on the existence vel

non of a “serious evidentiary dispute.” Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).

This deference reflects and recognizes the trial court’s proximity to the evidence. Id. If the

trial court makes no ruling as to whether there is a serious evidentiary dispute, Wright

implicitly requires the reviewing court to make that determination de novo based on its own

review of the evidence. Id.

       Here, the trial court did not issue written findings and conclusions, but it is apparent

from the transcript that it made no ruling on the specific “serious evidentiary dispute” before

us on appeal. In a lengthy exchange with counsel about Garrett’s request for an instruction

on possession as a lesser-included offense of dealing methamphetamine, the trial court noted

“for simple possession of methamphetamine, you have to be able to show without a valid




                                               5
prescription5 . . . we didn’t have any evidence of that in this case, I don’t think the evidence

would support giving the instruction.” (Tr. at 607) (footnote added). Garrett’s counsel asked

“Who the heck ever had a prescription of [sic] methamphetamines,” (id. at 608), and the

court responded “Well, that is a good question. I don’t know. Do they give out prescriptions

for methamphetamine?” (Id.) After stating absence of a prescription was an element of the

offense of possession,6 the court said “the lesser-included for possession of meth will not be

given for those reasons.”7 (Id.) We therefore address de novo whether there was a serious

evidentiary dispute as to the lesser-included offense of possession.

        In this case it is the element of intent to deliver that distinguishes dealing in

methamphetamine from the lesser-included offense of possession of methamphetamine.

There was a serious evidentiary dispute as to whether Garrett merely possessed

methamphetamine or also intended to deliver it. Therefore, the instruction on possession

should have been given.

        In Porter v. State, 671 N.E.2d 152, 154 (Ind. Ct. App. 1996), trans. denied, the State

charged Porter with attempted murder and the trial court denied his request for an instruction

on battery with a deadly weapon. We determined there was a serious evidentiary dispute


5
  Ind. Code Ann. § 35-48-4-6.1 provides, in pertinent part: “A person who, without a valid prescription or
order of a practitioner acting in the course of the practitioner’s professional practice, knowingly or intentionally
possesses methamphetamine (pure or adulterated) commits possession of methamphetamine.”
6
  This appears incorrect. See Burgin v. State, 431 N.E.2d 864, 866 (Ind. Ct. App. 1982) (the existence of a
valid prescription is an exception to, not an element of, the possession statute) (addressing Ind. Code § 35-48-
4-7, which defines possession of a controlled substance).
7
  That statement suggests the trial court might have believed possession was not a lesser-included offense
because of the “prescription” language. If that was the basis for the trial court’s ruling, it was error.
Possession is a lesser-included offense of possession with intent to deliver. Richardson v. State, 856 N.E.2d
1222, 1230 (Ind. Ct. App. 2006), trans. denied.

                                                         6
concerning Porter’s intent to kill. Porter admitted shooting the victim but testified he did not

intend to shoot him -- he did so by accident while firing warning shots. We noted the jury

was not required to believe Porter’s version of the events, but “it was a matter for the jury to

conclude whether the lesser offense was committed but the greater one was not. The trial

court properly instructed the jury on the lesser included offense of battery with a deadly

weapon.” Id.

        Similarly, in the case before us, the jury was not required to believe Garrett’s version

of the events. But as in Porter, it was for the jury to decide whether the lesser offense was

committed and the greater one was not.8 Garrett testified Haines, the driver of the car in

which she was riding when police stopped them, was the drug dealer and she was not. She

testified Haines had been physically abusive and threatened to hurt her and her children if she

did not tell police the drugs and weapons were hers. A State’s witness conceded the amount

of methamphetamine in Garrett’s possession could be consistent with using as opposed to

dealing and conceded a glass pipe found on Garrett was commonly associated with use, not

dealing.




8
 The State asserts the evidence “overwhelmingly indicates [Garrett] intended to deal methamphetamine.” (Br.
of Appellee at 13.) The State offers no authority to support its apparent premise that a greater weight of
evidence supporting one conclusion precludes a determination that there could be an evidentiary dispute, and
we decline to so hold. Instead, we apply the standard articulated by our Indiana Supreme Court and determine
whether, in light of the evidence presented by both parties, a jury could conclude that the lesser offense was
committed but not the greater. Wright, 658 N.E.2d at 567. Here, the jury could have so concluded. See
Turner v. State, 751 N.E.2d 726, 734 (Ind. Ct. App. 2001) (“if the jury believed Turner’s testimony rather than
other evidence in the record, it could have concluded that he killed without the intent required for a murder
conviction. We stress that while the evidence contrary to Turner’s testimony may appear quite strong to us, we
are not permitted to weigh testimony on appeal.” (footnote omitted)).
                                                      7
      As the jury was not properly instructed, we must reverse Garrett’s conviction and

remand for a new trial.

      Reversed and remanded.

CRONE, J., and BROWN, J., concur.




                                          8
