Devon Scott Bline v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 20, 2020
• Docket: 19A-CR-3067
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 20 2020, 8:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Sierra A. Murray Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devon Scott Bline, August 20, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3067 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1904-F3-12487

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 1 of 11 Case Summary [1] Devon Scott Bline (“Bline”) appeals his conviction, following a jury trial, for

dealing in methamphetamine, as a Level 2 felony.1 He raises one issue on

appeal which we restate as whether the trial court abused its discretion when it

gave the jury an instruction regarding the weight of the methamphetamine.

[2] We affirm.

Facts and Procedural History [3] On March 28, 2019, at approximately 3:00 p.m., Officer Daniel Hiser (“Officer

Hiser”) pulled over Bline’s car for a traffic infraction. Bline was the driver and

sole occupant of the car, an Impala. As Officer Hiser approached the driver’s

side of the vehicle, he saw a digital scale in the back seat. When asked for

identification, Bline handed the officer an identification card. The officer

recognized that Bline was not the person depicted on the card and asked Bline

several questions about his identifying information. Bline initially claimed “it

was him on the ID” card but subsequently admitted that it was not. Tr. at 118.

Officer Hiser instructed Bline to exit the vehicle, and he placed Bline in

1 Ind. Code § 35-48-4-1.1(a)(2), (e)(1).

Bline was also convicted of possession of a narcotic drug, as a Level 6 felony, I.C. § 35-48-4-6(a), and found to be a habitual offender, I.C. § 35-50-2-8(a). However, he does not address either of those dispositions in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 2 of 11 handcuffs. As Bline exited, Officer Hiser observed another black digital scale

located in the pocket of the driver’s side door.

[4] Another officer on the scene gathered the vehicle’s VIN number and discovered

that the Impala was stolen. Officer Hiser then searched the Impala. He

retrieved the two digital scales he had observed previously and also discovered a

butane lighter. Officer Hiser noticed that the trim around the gear shift of the

center console was not attached to the vehicle. He lifted the console and found

a firearm underneath it. Inside the glove compartment of the vehicle, Officer

Hiser discovered two aluminum foil wrappers and loose pills. One of the foil

wrappers contained 27.09 grams of methamphetamine, and the other contained

2.56 grams of heroin. Officer Hiser also found a roll of aluminum foil on the

back-seat floorboard. In the trunk of the vehicle, Officer Hiser discovered some

crushed pills and a bottle of pills prescribed to someone other than Bline.

[5] The State charged Bline with dealing in methamphetamine as a Level 2 felony,

among other charges. Bline had a jury trial on November 12, 2019. Prior to

the presentation of evidence at the trial, the court gave the jury sixteen

preliminary instructions. Within the instructions, the jury was also told to base

its decision on the evidence presented and the instructions on the law. The jury

was told to “consider all of the instructions together. Do not single out any

certain sentence, or any individual point, or instruction, and ignore the others.”

Tr. V. I at 104. The jury was also instructed to “fit the evidence presented to

the presumption the defendant is innocent if you can reasonabl[y] do so.” Id. at

106.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 3 of 11 [6] The State presented the testimony of Officer Garland Cooper (“Officer

Cooper”), an officer with the Indianapolis Metropolitan Police Department

who works in the Southeast District Narcotics Unit. Officer Cooper has

specialized training in drug identification and trends such as how drugs are

manufactured, concealed, and trafficked, the cost of drugs, and the effects of

drugs. Officer Cooper testified about the drug trends in Indianapolis. He stated

that baggies and foil are the predominant packaging supplies for heroin, but

methamphetamine is occasionally packaged in foil as well. Methamphetamine

is commonly ingested by smoking the drug out of a glass pipe, and butane

lighters are “consistent with drug use for lighting pipes and bowls.” Id. at 123.

[7] Officer Cooper also testified about the differences and similarities between drug

dealers and users. He stated that a person may be a user and dealer of illegal

drugs at the same time. Dealers will make the most money by selling heroin

and methamphetamine in one-gram transactions, and a half of a gram to a

gram is the typical dosage for an individual use of methamphetamine. It is

typical for drug dealers to carry a gun because robberies are common. It is not

typical for a drug user to carry a gun. Drug dealers are very concerned with

weight and will typically weigh out their drugs on digital scales. Drug users are

not generally concerned with exact weight. Drug dealers often conceal drugs in

the glove box or center console of a vehicle and will have a way to package the

drug when sold to individual users. Aluminum foil is one way to package

drugs. A dealer does not usually possess paraphernalia used for consuming

drugs. There are different levels of methamphetamine dealers, and low-level or

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 4 of 11 “street level” dealers tend to buy about one ounce at a time, sell in grams, and

be more mobile. Tr. V. I at 169. Some low-level dealers may not have a large

amount of money if they have about an ounce of drugs because they have not

yet sold much of the drug.

[8] Officer Cooper also testified that methamphetamine users typically purchase

and immediately use only one dose at a time and keep paraphernalia, such as a

pipe or needle, with them to consume the drug. It is not common for users of

methamphetamine to have a large quantity of the drug with them because users

generally do not have money to purchase a large amount. Methamphetamine

users tend to be very active because the drug is a stimulant, and they may have

missing or discolored teeth and gum disease. Methamphetamine users also

tend to be very skinny and frail in stature, have open skin wounds, and often

itch at their skin. Drug users tend to prefer either methamphetamine or heroin;

it is uncommon to use both.

[9] After the presentation of evidence, the State requested that the trial court give a

jury instruction that stated additional evidence, other than weight of the drug, is

necessary in order to convict the defendant of dealing in methamphetamine.

Bline objected on the grounds that the instruction was “not an element of

defense,” “elevat[ed] one fact over the other,” and was not relevant. Tr. V. I at

200-01, 208-09. The trial court gave the instruction over Bline’s objection. The

sixteen preliminary instructions were reiterated in writing, and the jury was

instructed to continue considering them during its deliberations.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 5 of 11 [10] Twenty final instructions were given which included, in relevant part, the

following:

Number 5, … To convict the Defendant, the State must have proven each of the following elements beyond a reasonable doubt: On or about March 28th, 2019, the Defendant, Devon Bline knowingly or intentionally possessed with the intent to deliver methamphetamine pure or adulterated, said methamphetamine weighing—having a weight of at least 10 grams. If the State fails to prove each of these elements beyond a reasonable doubt, you must find the Defendant, Devon Bline, not guilty of dealing in methamphetamine.

***

Number 9, if the amount of methamphetamine is less than 28 grams, the person may be convicted only if there’s evidence in addition to the weight of the drug that the person intended to deliver the methamphetamine.

Number 10, under the laws of this State a person charged with a crime is presumed to be innocent. This presumption of innocence continues in favor of the Defendant throughout each stage of the trial. You should fit the evidence presented to the presumption of the Defendant is innocent if you can reasonably do so. If the evidence lends itself to reasonable interpretations, you must choose the interpretation consistent with the Defendant’s innocence….

Number 15, your verdict should be based on the law, and the facts as you find them….

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 6 of 11 ***

Number 17,… In considering any one instruction, you should construe it in connection with, and in the light of every other instruction given….

Id. at 213-16; App. at 102, 106-07, 112, 114.

[11] The jury found Bline guilty of dealing in methamphetamine, as a Level 2

felony, among other convictions. The trial court entered judgments of

conviction accordingly. The court held a sentencing hearing on December 4,

2019, and sentenced Bline to an aggregate term of thirty years in the

Department of Correction. This appeal ensued.

Discussion and Decision [12] The only issue Bline raises on appeal is whether the trial court erred in giving

the jury instruction number nine, i.e., “if the amount of methamphetamine is

less than 28 grams, the person may be convicted only if there is evidence in

addition to the weight of the drug that the person intended to deliver the

methamphetamine.” Tr. at 213; App. at 106. He contends that instruction

“misled” the jury because it removed “an element from consideration by the

jury,” was irrelevant, and “improperly emphasized certain facts,” i.e., that

twenty-eight grams is the cut-off to strict liability. Appellant’s Br. at 9.

[13] We review a trial court’s decision to tender or reject a jury instruction for an

abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 7 of 11 Under this standard, we look to whether evidence presented at trial supports the instruction and to whether its substance is covered by other instructions. [Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012).] When the appellant challenges the instruction as an incorrect statement of law, we apply a de novo standard of review. Id. at 1231. We reverse the trial court only if the instruction resulted in prejudice to the defendant’s “substantial rights.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).

Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). In reviewing a trial court’s

decision to give or refuse tendered jury instructions, we consider: (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). “Absent evidence to the

contrary, we generally presume the jury follows the trial court’s instructions in

reaching its determination.” Gibson v. State, 43 N.E.3d 231, 241 n.5 (Ind. 2015).

[14] Jury instruction number 9 is a correct statement of the law, in summary form.

Indiana Code Section 35-48-4-1.1 states, in relevant part:

(a) A person who:

(2) possesses, with intent to:

(A) deliver … methamphetamine, pure or adulterated;

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 8 of 11 commits dealing in methamphetamine…

(b) A person may be convicted of an offense under subsection (a)(2) only if:

(1) there is evidence in addition to the weight of the drug that the person intended to deliver … the drug; or

(2) the amount of the drug involved is at least twenty-eight (28) grams.

(e) The offense is a Level 2 felony if:

(1) the amount of the drug involved is at least ten (10) grams …

[15] Moreover, there was evidence in the record to support giving instruction

number nine. Officer Hiser testified that he found the methamphetamine,

scales, and aluminum foil in Bline’s vehicle, and Bline was the sole occupant of

that vehicle. State’s Exhibit 32, admitted by stipulation, is a laboratory report

stating that the methamphetamine found in Bline’s car weighed 27.09 grams.

And Officer Cooper testified that, based on his specialized training and

experience related to drug trends, the circumstances surrounding the discovery

of the methamphetamine in Bline’s car were indicative of dealing—rather than

just using—the drug.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 9 of 11 [16] While the reference to twenty-eight grams may have been irrelevant since the

amount here was below twenty-eight grams, and the relevant portions of

instruction number 9 may have been covered by other instructions, such as

instruction number 5, Bline has failed show any harm from the inclusion of jury

instruction number 9. His contention that the instruction “misled” the jury by

emphasizing the weight of twenty-eight grams is incorrect; the instruction

emphasized weight less than twenty-eight grams. Nor did instruction 9 remove

any element of the offense, as Bline asserts; rather, the instruction specifically

stated that the State must prove possession with intent to deliver in addition to

the weight of the drug.

[17] Bline has offered no evidence to rebut our assumption that the jury followed the

trial court’s instructions in reaching its decision. Gibson, 43 N.E.3d at 241 n.5.

And we discern no prejudice to Bline’s “substantial rights” from the inclusion

of instruction number 9.2 Batchelor, 119 N.E.3d at 554; see also Ind. Trial Rule

61. Rather, if the instruction had any effect on the jury, it would have been to

Bline’s advantage as the instruction specifically provided that he could only be

convicted if there was evidence of intent to deliver “in addition to the weight”

where the drug weighs less than twenty-eight grams. App. at 106 (emphasis

2 Bline cites no authority for his contention that, “[i]n cases less than 28 grams, th[e] juxtaposition between 10 and 28 grams creates an evidentiary spectrum requiring the State to produce less and less evidence the closer the weight comes to 28 grams.” Appellant’s Br. at 14. Therefore, he waives that argument. Ind. App. R. 46(A). Waiver notwithstanding, we note that his contention conflicts with the plain language of Indiana Code Section 35-48-4-1.1(b).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 10 of 11 added). Thus, even if the trial court erred in giving instruction 9, we will not

reverse its decision because the error was harmless.

[18] Affirmed.

Vaidik, J., and Baker, S.J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3067 | August 20, 2020 Page 11 of 11