Poe v. State
| Decision Date | 17 September 2002 |
| Docket Number | No. 28A01-0202-CR-77.,28A01-0202-CR-77. |
| Citation | 775 N.E.2d 681 |
| Parties | Todd POE, Appellant Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Robert C. Price, Price & Runnells, Bloomington, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Todd Poe ("Poe") appeals his conviction in the Greene Circuit Court for Dealing in a Schedule II Controlled Substance,1 a Class B felony, and Possession of Precursors for an Illegal Drug Lab,2 as a Class D felony. Poe raises the following two issues on appeal:
I. Whether the trial court abused its discretion when it refused Poe's tendered jury instruction on the definition of manufacturing; and,
II. Whether the trial court abused its discretion when it instructed the jury that it did not have to find that Poe committed the accused offenses on the specific date listed in the Information.
We reverse and remand for a new trial.
The facts most favorable to the trial court's decision reveal that on June 23, 2000, Aaron Michael Gater ("Gater") made an emergency call to 911, to which the Greene County Sheriff Department responded. Gater reported that two men had chased him through the woods near his residence in Solsberry, Indiana, and that he heard one of the men tell the other man to shoot him. Upon arrival at the scene, Greene County Sheriff Officers Terry Pierce ("Officer Pierce") and Brian Allen ("Officer Allen") went with Gater to the woods where the alleged incident occurred. While looking in the woods for the two men, the officers came upon a tree stump covered with several glass jars, a bottle of Liquid Fire, which contains sulfuric acid, and a container of salt. They also found a black backpack and a large, green duffel bag beside it on the ground.
Based on his experience, Officer Pierce believed the items to be part of a methamphetamine lab. After informing Officer Allen of his suspicions, Officer Pierce noticed a three-wheeler vehicle near the area, approximately fifty feet away, and Poe lying on the ground next to it. Based upon their concerns that another person might also be hiding in the woods, the officers handcuffed Poe and read him his Miranda rights. After it was determined that the officers had come across a working methamphetamine lab, analyses on the substances found in the jars tested positive for methamphetamines, and two of Poe's fingerprints were found on one of the glass jars, Poe was charged with Dealing in a Schedule II Controlled Substance, as a Class B felony, and Possession of Precursors for an Illegal Drug Lab, as a Class D felony. The charging information alleged that all of the events upon which the charges were based occurred "on or about June 23, 2000." Appellant's App. p. 15.
Poe's two-day trial began on August 15, 2001. During trial, Poe called Gater as a witness. Gater testified that Poe came to his house on June 21, 2000, in order to cook methamphetamines. Tr. p. 321. The remainder of his testimony recounted events from June 21st through June 23rd, up until Gater asked a neighbor to call the police on the morning of June 23rd, claiming that two men were trying to shoot him in the woods. Tr. p. 324. From the time of the 911 call through trial, Gater's story of the three days of events changed at least five times, as he admitted during his direct examination at trial. Tr. p. 337.
After closing arguments on August 16, 2001, but before jury deliberations, the court read the jury instructions. One of the instructions given by the court, over Poe's objection, was a partial definition of "manufacture," taken from Indiana Code section 35-48-1-18, in effect at the time of the offense. It read:
The term "manufacture" means (1) the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
Appellant's App. p. 60. Poe's counsel requested that the entire statute be included in the instruction. Appellant's App. p. 395. Excluded from the instruction was the remainder of the statute, which reads:
It does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance: (A) By a practitioner as an incident to his administering or dispending of a controlled substance in the course of his professional practice; or (B) By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale; or (2) The organizing or supervising of an activity described in subdivision (1).
Ind.Code § 35-48-1-18 (1998).3
During deliberations, the jury sent two questions to the court. Tr. p. 442. The first question, which is applicable to this appeal, read: "Concerning all counts— please define `on or about June 23' does that mean that day, that few days, etc." Appellant's App. p. 23. Over Poe's objection, Tr. p. 443, the court responded to the jury's first question by tendering the following instruction to the jury: Appellant's App. p. 24 (emphasis in original). The jury returned its guilty verdict on August 16, 2001, and after a sentencing hearing on November 13, 2001, the trial court sentenced Poe to the Department of Correction for eleven years on Count I, Dealing in a Schedule II Controlled Substance, a Class B felony, and one and one-half years on Count II, Possession of Precursors for an Illegal Drug Lab, a Class D felony. Poe was given 240 days credit for time served, and Count II was ordered to run concurrent with Count I. Poe now appeals. Additional facts will be provided as necessary.
Poe first argues that the trial court wrongfully refused to tender his instruction on the definition of "manufacturing." Our review of the trial court's decision to give or refuse a tendered jury instruction is for an abuse of discretion. In reviewing the decision, Indiana appellate courts look to the following three factors: "(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given." Guyton v. State, 771 N.E.2d 1141, 1144 (Ind.2002) (citing Cutter v. State, 725 N.E.2d 401, 408 (Ind.2000)).
The scenario under which this issue typically arises is when a trial court has refused to instruct a jury on a defense. See Patton v. State, 760 N.E.2d 672 (Ind.Ct. App.2002)
; Toops v. State, 643 N.E.2d 387 (Ind.Ct.App.1994). However, that is not the issue presented in this appeal. Here, we follow a new line of Indiana Court of Appeals' decisions concerning whether the jury was properly instructed on the elements of Dealing in a Schedule II Controlled Substance, and whether the State met its burden of proving those elements, rather than whether the trial court wrongfully refused to instruct the jury about a defense.
At the time of the offense in this case, Dealing in a Schedule II Controlled Substance was defined as:
Ind.Code § 35-48-4-2(a) (1998). At that same time, Indiana Code section 35-48-1-18 defined manufacturing as:
(1) The production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. It does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
Ind.Code § 35-48-1-18 (1998) (emphasis added). The definition of manufacturing was revised, effective July 1, 2001, for all offenses committed after June 30, 2001, to delete the personal use exemption in subsection (1), as emphasized above.
In Bradley v. State, 765 N.E.2d 204 (Ind.Ct.App.2002), a panel of this court, following the reasoning in Judge Sullivan's concurring opinion in Hatcher v. State, 762 N.E.2d 170, 175-76 (Ind.Ct.App.2002), trans. denied,4 concluded that the "clear language" of ...
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