McKinley v. State, 100615 INCA, 49A02-1502-CR-78

Docket Nº49A02-1502-CR-78
Opinion JudgeRobb, Judge.
Party NameJermaine McKinley, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
AttorneyATTORNEY FOR APPELLANT Darren Bedwell Marion County Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
Judge PanelVaidik, C.J., and Pyle, J., concur.
Case DateOctober 06, 2015
CourtCourt of Appeals of Indiana

Jermaine McKinley, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

No. 49A02-1502-CR-78

Court of Appeals of Indiana

October 6, 2015

Appeal from the Marion Superior Court The Honorable David Seiter, Judge Trial Court Cause No. 49G20-1405-FA-26498

ATTORNEY FOR APPELLANT Darren Bedwell Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] Following a jury trial, Jermaine McKinley was convicted of dealing in cocaine as a Class A felony. McKinley appeals his conviction, raising one issue for our review: whether the trial court properly instructed the jury as to the requisite mental state for the offense of possession of cocaine with intent to deliver. Finding no fundamental error in the instruction of the jury, we affirm McKinley's conviction for dealing in cocaine.

Facts and Procedural History

[2] Officers James Burton and David Carney of the Indianapolis Metropolitan Police Department arrested McKinley pursuant to an open arrest warrant on May 21, 2014. During a search incident to arrest, Officer Burton discovered five small baggies of suspected cocaine and $720 on McKinley's person.1 After being read his Miranda rights, McKinley admitted the baggies contained cocaine and asked Officer Carney whether he could "just get rid of the drugs." Transcript at 48. Officer Carney said he could not do that but assured McKinley that he would be okay. McKinley responded, "No, I won't be, not with it all bagged up like that." Id. at 81-82. Forensic testing later confirmed McKinley had been in possession of 5.233 grams of cocaine.

[3] The State charged McKinley with dealing in cocaine as a Class A felony and possession of cocaine as a Class C felony. The charging information alleged:

COUNT I

Jermaine McKinney [sic], on or about May 21, 2014, did knowingly possess with intent to deliver a controlled substance, that is: cocaine, in an amount greater than three (3) grams;

COUNT II

Jermaine McKinney [sic], on or about May 21, 2014, did knowingly possess a controlled substance, that is: cocaine, in an amount greater than three (3) grams . . . .2

Appellant's App. at 19 (emphasis added).

[4] A jury trial was held on November 20, 2014. The trial court's preliminary jury instructions included the following instruction:

Preliminary Instruction No. 4

In this case, the State of Indiana has charged the Defendant with Count 1: Dealing in Cocaine; and Count 2: Possession of Cocaine.

The charges read as follows:

Count One: Jermaine McKinley, on or about May 21, 2014, did knowingly possess with intent to deliver a controlled substance, that is: cocaine, in an amount greater than three (3) grams;

Count Two: Jermaine McKinley, on or about May 21, 2014, did knowingly possess a controlled substance, that is: cocaine, in an amount greater than three (3) grams.

Id. at 46-47 (emphasis added).

[5] During closing argument, the State echoed the trial court's preliminary instruction: "In order to find the defendant guilty of Count I, Dealing in Cocaine, you would have to believe that on or about May 21st, 2014, the defendant did knowingly . . . possess with the intent to deliver cocaine in the amount of three grams." Tr. at 180 (emphasis added). Closing arguments focused on McKinley's intent to deliver the cocaine found on his person, as McKinley had admitted to possessing the cocaine.

[6] Prior to jury deliberations, the trial court read additional instructions, which included in relevant part:

Final Instruction No. 4

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

A person who knowingly delivers or possesses with intent to deliver a controlled substance, that is: cocaine, in an amount greater than three (3) grams, commits Dealing in Cocaine.

To convict the Defendant of Dealing in Cocaine, as charged in Count I, the State must have proved each of the following beyond a reasonable doubt: On or about May 21, 2014 Defendant

1. knowingly

2. possessed with intent to deliver

3. a controlled substance, that is: cocaine, pure or adulterated

4. in an amount greater than three (3) grams.

If the State fails to prove each of these elements beyond a reasonable doubt, you should find the Defendant not guilty of Dealing in Cocaine, as charged in Count I.

Final Instruction No. 8

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. at 51-53 (emphasis added). The trial court did not define "intent to deliver." Defense counsel neither requested additional instructions, nor objected to the trial court's instructions regarding the elements of possession of cocaine with intent to deliver.3

[7] The jury returned guilty verdicts on both counts. At sentencing, the trial court merged Count II into Count I and entered a judgment of conviction for dealing in cocaine as a Class A felony. The trial court sentenced McKinley to thirty-five years, with twenty years executed in the Indiana Department of Correction, fifteen years suspended, and two years of probation. This appeal followed.

Discussion and Decision

I. Standard of Review

[8] The purpose of a jury instruction is to inform the jury of the law applicable to the facts and enable the jury to comprehend the case clearly so that it may arrive at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015). McKinley was convicted of possession of cocaine with intent to deliver as a Class A felony. Indiana Code section 35-48-4-1 (2006) provides in relevant part:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or

(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 Class B felony, excepted as provided in subjection (b).

(b) The offense is a Class A felony if:

(1) the amount of the drug involved weighs three (3) grams or more . . . .

[9] McKinley contends the jury instructions misstated the requisite mental state for possession of cocaine with intent to deliver. He argues the trial court erred by including the word "knowingly" as an element of the offense and thereby permitted the jury to convict him on the dealing charge without finding a specific intent to deliver. Generally, a contemporaneous objection is required to preserve such an issue for appeal. White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006), trans. denied. Our review of the record shows McKinley never objected to the court's instructions concerning the elements of possession with intent to deliver. Nonetheless, McKinley argues the alleged error was fundamental.

[10] The fundamental error exception is extremely narrow and applies only when an error constitutes a blatant violation of basic principles of due process. Isom, 31 N.E.3d at 490. The error must be "so prejudicial to the rights of a defendant a fair trial is rendered impossible." White, 846 N.E.2d at 1033. When determining whether an incorrect jury instruction amounts to fundamental error,

we look not to the erroneous instruction in insolation, but in the context of all relevant information given to the jury, including closing argument and other instructions. There is no resulting due process violation where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law.

Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations omitted).

II. Jury Instructions

[11] McKinley argues the trial court erred by including the word "knowingly" as an element of possession of cocaine with intent to deliver, "when by statute that...

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