Garrett v. State

• Decision Date: 07 March 2012
• Docket Number: No. 32A05–1105–CR–239.,32A05–1105–CR–239.
• Citation: 964 N.E.2d 855
• Parties: Angela C. GARRETT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

964 N.E.2d 855

Angela C. GARRETT, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 32A05–1105–CR–239.

Court of Appeals of Indiana.

March 7, 2012.

Paula M. Sauer, Danville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

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 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 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 offense ⁴ such 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 prescription ⁵ ... 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 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...