Pursuant to Ind. Appellate Rule 65(D), this
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:
MICHELLE F. KRAUS GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
FILED
May 16 2012, 9:22 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
LOWELL JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1109-CR-481
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D06-1104-FB-75
May 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Lowell Jones appeals his convictions for class B felony dealing in cocaine and class D
felony resisting law enforcement. The sole issue presented for our review is whether the trial
court abused its discretion in refusing to give Jones’s proffered jury instruction on class D
felony possession of cocaine as a lesser included offense of class B felony dealing in cocaine.
Finding no abuse of discretion, we affirm.
Facts and Procedural History
Catherine Sarson acted as a confidential informant for the Fort Wayne Police
Department. On April 6, 2011, Sarson contacted Jones and asked him if she could “get a
50,” meaning if she could purchase fifty dollars worth of crack cocaine from him. Tr. at 131.
Jones agreed to meet Sarson in the back parking lot of the Stein Tavern in order to sell her
the cocaine. Sarson was searched by a female police officer, outfitted with a wire
transmitter, and given a recorded fifty-dollar bill. Sarson drove with Fort Wayne Police
Detective Jeff Ripley to the Stein Tavern.
Upon reaching the tavern, Detective Ripley and Sarson parked in the back parking lot
and waited for Jones to arrive. Eventually, Jones drove his vehicle into the tavern parking
lot. Sarson exited her vehicle and entered Jones’s vehicle. Jones then drove his vehicle to
the front of the tavern and parked. Sarson asked Jones “did you get my stuff?” and handed
him the fifty-dollar bill. Id. at 136. Jones got out of the vehicle and asked Sarson to go
inside the tavern with him. Sarson accompanied Jones to the front door of the tavern. While
at the tavern doorway, Jones handed Sarson half a gram of cocaine wrapped in cellophane.
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Undercover Fort Wayne Police Detective Shane Heath, who was conducting surveillance of
the transaction, observed Jones deliver the cocaine to Sarson. Sarson immediately returned
to Detective Ripley’s vehicle and gave him the cocaine.
After Jones returned to his vehicle and exited the tavern parking lot, police officers
followed his vehicle, activated their emergency lights, and attempted to make a stop of his
vehicle. Jones did not stop but accelerated as the officers pursued him. Jones subsequently
crashed into a pole, took off running, and was eventually apprehended by an officer on foot.
When Jones was arrested and searched, officers discovered in his possession the recorded
fifty-dollar bill that Sarson had given him.
On April 12, 2011, the State charged Jones with class B felony dealing in cocaine and
class D felony resisting law enforcement. A jury trial was held on August 10, 2011.
Following the presentation of evidence, Jones tendered a jury instruction on possession of
cocaine as a lesser included offense of dealing in cocaine. The trial court refused to give the
instruction. The jury found Jones guilty as charged. This appeal ensued.
Discussion and Decision
Jones’s sole contention on appeal is that the trial court abused its discretion when it
refused to give his tendered jury instruction on class D felony possession of cocaine as a
lesser included offense of class B felony dealing in cocaine. Trial courts should perform a
three-part test when called upon by a party to instruct on a lesser included offense of the
crime charged. Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing Wright v. State,
658 N.E.2d 563 (Ind. 1995)). Specifically,
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First, the trial court must compare the statute defining the crime charged with
the statute defining the alleged lesser included offense to determine if the
alleged lesser included offense is inherently included in the crime charged.
Second, if a trial court determines that an alleged lesser included offense is not
inherently included in the crime charged under step one, then it must determine
if the alleged lesser included offense is factually included in the crime charged.
If the alleged lesser included offense is neither inherently nor factually
included in the crime charged, the trial court should not give an instruction on
the alleged lesser included offense. Third, if a trial court has determined that
an alleged lesser included offense is either inherently or factually included in
the crime charged, “it must look at the evidence presented in the case by both
parties” to determine if there is a serious evidentiary dispute about the element
or elements distinguishing the greater from the lesser offense and if, in view of
this dispute, a jury could conclude that the lesser offense was committed and
not the greater. “[I]t is reversible error for a trial court not to give an
instruction, when requested, on the inherently or factually included lesser
offense” if there is such an evidentiary dispute.
Id. (internal citations omitted).
The parties agree that possession of cocaine is an inherently lesser included offense of
dealing in cocaine. See Hardister v. State, 849 N.E.2d 563, 576 (Ind. 2006). Accordingly, it
is appropriate to proceed to the third step of the analysis to determine if there is a serious
evidentiary dispute about the elements distinguishing the lesser offense from the greater
offense. True v. State, 954 N.E.2d 1105, 1108 (Ind. Ct. App. 2011). As stated above, when
addressing the question of whether there is a serious evidentiary dispute, the trial court must
evaluate the evidence presented by both parties. Fisher v. State, 810 N.E.2d 674, 680 (Ind.
2004). When the trial court has made an express finding on the existence or lack of such a
dispute, our standard of review for a lesser included offense instruction is abuse of discretion.
True, 954 N.E.2d at 1108. This deference reflects and recognizes the trial court’s proximity
to the evidence. Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).
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While possession involves knowingly or intentionally possessing cocaine, dealing
cocaine involves the knowing delivery of cocaine. See Sledge v. State, 677 N.E.2d 82, 85
(Ind. Ct. App. 1997); Ind. Code § 35-48-4-6 (possession); Ind. Code § 35-48-4-1 (dealing).
Thus, the trial court was required to determine whether there was a serious evidentiary
dispute concerning whether Jones delivered the cocaine as opposed to merely possessing it.
Following a lengthy discussion with counsel regarding the evidence presented by both
parties, the trial court specifically found,
After listening to the evidence I am making a factual finding on the record that
there is a lack of serious evidentiary dispute here that would conclude that the
Defendant was merely possessing and not delivering. In fact, the Defendant’s
theory does not support nor is there any evidence in the record of mere
possession. I believe to give this instruction would be clearly misleading the
jury.
Tr. at 279.
As noted by the trial court, Jones presented no evidence to refute the State’s evidence
that Jones delivered cocaine to Sarson. Although Jones testified that he was a drug “user”
and denied being a drug “dealer,” he did not deny his intent to deliver cocaine to Sarson, nor
did he dispute his actual delivery of cocaine to Sarson. Id. at 261, 263. Indeed, there was no
evidence presented by either party that would support a reasonable inference that Jones
merely possessed cocaine, and therefore there was no serious evidentiary dispute regarding
the element of delivery. The trial court did not abuse its discretion when it refused to give
Jones’s tendered jury instruction.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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