MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Jul 31 2015, 9:01 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Thompson,                                         July 31, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A04-1411-CR-534
        v.                                               Appeal from the Floyd Circuit Court
                                                         The Honorable J. Terrence Cody,
State of Indiana,                                        Judge
                                                         Cause No. 22C01-1311-FA-2175
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015      Page 1 of 9
[1]   Jeremy Thompson appeals his conviction for Dealing in a Schedule I

      Controlled Substance,1 a class A felony. He argues that the trial court erred

      when it rejected his tendered jury instructions on 1) the proper procedures of a

      controlled buy, and 2) his defense to the felony enhancement. Finding no error,

      we affirm.


                                                     Facts
[2]   On August 27, 2013, a confidential informant (CI)—acting on the instructions

      of New Albany Police Officers Ronald Gaines and Jason Hatfield—texted

      Thompson to set up a meeting. Through a series of veiled text messages that

      signaled a narcotics transaction, the CI and Thompson negotiated a price of

      fifty dollars and agreed to meet. Thompson, who often spent time at the home

      of Kristen Moran, texted the CI that he was at “Kristin’s,” at the Cross Creek

      Apartments on Green Valley Road in Floyd County. Ex. 1.


[3]   Before the CI went to meet Thompson, Officer Gaines and Officer Hatfield

      searched her, as well as her vehicle, to ensure that she was not already in

      possession of narcotics. The CI was traveling to the meeting with her mother,

      whom the officers also searched. The CI was then equipped with an

      audio/video recording device, and she and her mother drove to the Cross Creek

      Apartments.




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


      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 2 of 9
[4]   When they arrived at the apartments, the CI went inside to meet Thompson in

      the apartment they had designated through their text messages. She went inside

      the apartment, where she paid Thompson fifty dollars in exchange for a baggie.

      The video/audio device captured the exchange, and showed Thompson

      handing a baggie to the CI and telling her, “it’s fire,” although it did not show

      the CI handing Thompson the money. Tr p. 311. The video showed that

      approximately one minute and seven seconds passed between the time that the

      CI entered the apartment and when she returned with the baggie.


[5]   After she left the apartment, the CI gave the baggie she had obtained from

      Thompson to the officers. A forensic analysis of the baggie’s contents revealed

      that it contained heroin, Nicotinamide, and Papaverine; the latter two

      substances are not controlled. The contents of the baggie weighed .33 grams.


[6]   On November 13, 2013, the State charged Thompson with dealing in a

      schedule I controlled substance, a class A felony, and with being an habitual

      offender. A jury trial was held on August 25-28, 2013. In discussing final

      instructions, Thompson requested that the trial court give an instruction to the

      jury defining a controlled buy. The trial court rejected the instruction, stating

      that it found that “there is fertile ground for both parties to argue whether or not

      there were adequate controls to the buy, and the jury can [] draw their own

      conclusions from the evidence and from the arguments of counsel.” Tr. p. 733.

      Thompson also requested that the jury be given an instruction regarding a

      defense against the enhancement of his crime to a class A felony. The trial



      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 3 of 9
      court also rejected this instruction because it found that there was no evidence

      presented to support the defense.


[7]   On August 28, 2013, the jury found Thompson guilty as charged. Thompson

      waived his right to a jury trial on the sentencing enhancement, and, on

      September 24, 2013, the trial court found that Thompson was an habitual

      offender. On October 17, 2014, the trial court sentenced Thompson to twenty

      years for dealing in a schedule I substance and enhanced this sentence by three

      years for the habitual offender finding, resulting in an aggregate sentence of

      twenty-three years. Thompson now appeals.


                                    Discussion and Decision
[8]   Thompson argues that the trial court erred when it rejected his proffered jury

      instructions. Instructing the jury lies within the discretion of the trial court and

      we will reverse only when the instructions amount to an abuse of discretion.

      Murray v. State, 798 N.E.2d 895, 900 (Ind. Ct. App. 2003). The trial court

      abuses its discretion if it gives instructions that, taken as a whole, misstate the

      law or otherwise mislead the jury. Id.


[9]   “The purpose of jury instructions is to inform the jury of the law applicable to

      the facts without misleading the jury and to enable it to comprehend the case

      clearly and arrive at a just, fair, and correct verdict.” Id. at 899. In reviewing a

      trial court’s decision to give a tendered jury instruction, we consider (1) whether

      the instruction correctly states the law, (2) whether it is supported by the



      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 4 of 9
       evidence in the record, and (3) whether it is not covered in substance by other

       instructions. Id. at 899–900.


                                I. Controlled Buy Instruction
[10]   Thompson first argues that the trial court erred when it failed to give the

       following proffered instruction regarding the adequacy of controls in a

       controlled buy:

               A controlled buy consists of:
               1.       Searching the person who is to act as the buyer,
               2.       Removing all personal effects,
               3.       Giving him/her money with which to make the purchase,
               4.       Then sending him/her into the residence in question.
               Upon his her return he/she is again searched for contraband.
               Except for what actually transpires within the residence, the entire
               transaction takes place under the direct observation of the police.
               They ascertain that the buyer goes directly to the residence and returns
               directly, and they closely watch all entrances to the residence
               throughout the transaction.
               Whether a controlled buy was conducted properly goes to the
               credibility and weight of the evidence.
               Mills v. State, 379 N.E.2d 1023 (Ind. 1978).
       Appellant’s App. p. 97. Thompson argues that the trial court’s failure to thus

       instruct the jury “deprived him [of] an instruction for his only defense to the

       charged offense.” Appellant’s Br. p. 5.


[11]   In Howard v. State, 761 N.E.2d 449, 454 (Ind. Ct. App. 2002), this Court

       examined a similar instruction proffered by a defendant, which read:



       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 5 of 9
               A controlled buy consists of searching a person who is to act as the
               buyer, removing all personal effects, giving him the money with which
               to make the purchase, and sending him into the building or structure in
               question. Upon his return he is again searched for contraband. Except
               for what actually transpires within the building or structure, the entire
               transaction takes place under the direct supervision of the police. They
               ascertain that the buyer goes directly into the building and returns
               directly, and they closely watch all entrances to the building or
               structure throughout the transaction.
       In Howard, we determined that the trial court’s decision to reject this instruction

       was not an abuse of discretion. Id. The language used in the instruction was

       taken from Flaherty v. State, 443 N.E.2d 340, 341 (Ind. Ct. App. 1982), which

       was a case addressing the sufficiency of a probable cause affidavit. In finding

       that the trial court did not err in rejecting the instruction, we explained: “[n]ot

       only is Flaherty factually inapposite, the trial court in the instant case correctly

       explained that Howard could argue to the jury whether the confidential

       informants were adequately searched for contraband before participating in the

       controlled buy.” Howard, 761 N.E.2d at 454.


[12]   In the instant case, Thompson also proffered a jury instruction that was crafted

       from a case considering the sufficiency of a probably cause affidavit. See Mills,

       177 N.E.2d at 1026. Here, as with the instruction in Howard, the case

       Thompson has used to craft his instruction is factually inapposite. Moreover—

       just as the trial court in Howard noted that Howard had the opportunity to argue

       before the jury—the trial court here noted that “there is fertile ground for both

       parties to argue whether or not there were adequate controls to the buy, and the

       jury can [] draw their own conclusions from the evidence and from the

       arguments of counsel.” Tr. p. 733. We find that Thompson has not shown that
       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 6 of 9
       his proffered instruction was necessary and the trial court did not err in refusing

       to include it.


                                        II. Defense Instruction
[13]   Thompson also argues that the trial court erred when it rejected his instruction

       regarding his defense to the enhancement of his crime to a class A felony. At

       the time Thompson committed his offense, dealing in a schedule II substance

       was generally a class B felony. Ind. Code § 35-48-4-2.2 However, the offense

       became a class A felony if “the person delivered or financed the delivery of the

       substance . . . in, on, or within one thousand (1,000) feet of . . . a family

       housing complex.” Id. Also at the time of his offense, it was a statutory

       defense to the charge that a defendant had committed his offense within 1,000

       feet of a family housing complex that 1) “a person was briefly in, on, or within

       one thousand (1,000) feet” of a family housing complex, and 2) “no person

       under eighteen (18) years of age at least three (3) years junior to the person was

       in, on, or within one thousand (1,000) feet of the . . . family housing complex . .

       . at the time of the offense.” Ind. Code § 35-48-4-16(b).3


[14]   Thompson wished to include the following instruction regarding the above

       defense to the jury:




       2
        The statute has been amended, with an effective date of July 1, 2014. We use the statute that was in effect
       at the time Thompson committed his offense.
       3
        The statute has been amended, with an effective date of July 1, 2014. We use the statute that was in effect
       at the time Thompson committed his offense.

       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015                Page 7 of 9
               It is a defense to the charge brought by the State of Indiana that on or
               about August 27, 2013, Jeremy T. Thompson knowingly delivered
               heroin . . . within one thousand (1,000) feet of a family housing
               complex, to wit: Cross Greek Apartments if:
               (1) Jeremy T. Thompson’s time within one thousand (1,000) feet of a
               family housing complex was brief, and
               (2) No person under eighteen (18) years of age was in, on, or within
               one thousand (1,000) feet of a family housing complex.
               I.C. 35-48-4-16(b)(1) and (2)
               The term “briefly” means a period of time no longer than reasonably
               necessary for Jeremy T. Thompson’s intrusion into the proscribed
               zone principally for conduct unrelated to unlawful drug activies [sic],
               provided that Jeremy T. Thompson’s activities related to the charged
               offense were not visible.
               So, for example, the State must rebut this defense by proving beyond a
               reasonable doubt that Jeremy T. Thompson’s presence in the family
               housing complex was principally to engage in criminal drug activity
               during the time he was there and the time was not brief, and that such
               activity was visible to children.
               Once the defendant raises this defense, the Prosecutor must rebut this
               defense by proving beyond a reasonable doubt that the Defendant
               Jeremy T. Thompson was within 1,000 feet of a family housing
               complex more than “briefly” or that persons under the age of eighteen
               were within 1,000 feet of the family housing complex.
       Appellant’s App. p. 95.


[15]   Thompson was entitled to an instruction regarding this defense only if he

       presented evidence to support both prongs of this defense—that his stay was

       brief and that children were absent. See Jackson v. State, 890 N.E.2d 11 (Ind. Ct.

       App. 2008) (finding that the defendant was not entitled to an instruction on the

       Indiana Code section 35-48-4-16(b) “briefly” defense when the defendant had

       failed to present any evidence as to whether there were any children present).

       Here, Thompson did not present any evidence regarding whether children were
       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-534| July 31, 2015   Page 8 of 9
       present. Thompson argues that there is no footage of children in the video

       recorded by the CI during the meeting, but we agree with the State’s assertion

       that that is entirely inconclusive. Furthermore, Thomas presented no evidence

       that he was in the apartment complex only briefly. The recorded video may

       show that the drug transaction took little more than a minute, but there is a

       reasonable inference that Thompson was at the apartments both before and

       after the transaction took place. Indeed, before the meeting, he texted the CI

       that he was “at Kristin’s,” and Kristen Moran lived at the apartment complex.

       Ex. 1. Therefore, we find that there was no evidence to support this defense,

       and the trial court did not err in refusing the tendered instruction.


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


       Bailey, J., and Mathias, J., concur.




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