Nicholas Dunkerson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 13, 2019
• Docket: 18A-CR-1881
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 13 2019, 8:50 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew M. Kubacki Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nicholas Dunkerson, February 13, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1881 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Richard Hagenmaier, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G21-1704-F2-15327

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 1 of 11 Case Summary [1] Nicholas Dunkerson (“Dunkerson”) appeals his convictions,1 following a jury

trial, for dealing methamphetamine, as a Level 2 felony,2 and possessing

methamphetamine, as a Level 3 felony.3

[2] We affirm.

Issues [3] Dunkerson raises the following two restated issues:

1. Whether the State presented sufficient evidence to support his convictions for dealing methamphetamine and possessing methamphetamine.

2. Whether the trial court committed reversible error when it failed to instruct the jury regarding a reasonable theory of innocence.

Facts and Procedural History [4] At approximately 3:00 a.m. on April 23, 2017, Indianapolis Police Officer

David Williams (“Officer Williams”) was dispatched to investigate a report of a

1 Dunkerson was also convicted of resisting law enforcement, as a Class A misdemeanor. Ind. Code § 35- 44.1-3-1(a)(3). He does not appeal that conviction. 2 I.C. § 35-48-4-1.1(a)(2), (e)(1). 3 I.C. § 35-48-4-6.1(a), (d)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 2 of 11 disturbance. By the time police arrived, the altercation was over, and the

suspect had left the scene. However, individuals at the scene informed the

officers that one of the individuals who had fled the scene was possibly suicidal,

and they described him as a white young man wearing a black shirt.

[5] As he was patrolling the area looking for the young man, Officer Williams saw

a white male in a black t-shirt—later identified as Dunkerson—talking to a

woman who appeared to be crying and in distress in the parking lot of a gas

station. Dunkerson and the woman—later identified as Kristin McCoy

(“McCoy”)—were standing on either side of a parked Toyota Camry. Officer

Williams pulled into the gas station, parked, stepped out of his patrol car, and

asked Dunkerson what he was doing. Officer Williams then turned his

spotlight toward Dunkerson, and Dunkerson immediately ducked down behind

the Camry.

[6] Officer Williams was still able to partially see Dunkerson through the windows

of the Camry, and he saw that Dunkerson had his right hand in his jacket

pocket. Dunkerson did not say anything. While still ducking down behind the

Camry, Dunkerson shuffled back and forth from the front right side of the car to

the middle of the car. Dunkerson looked directly into Officer Williams’s eyes

as he shuffled about. After about fifteen seconds of this behavior, Dunkerson

moved toward the front of the car and suddenly took off running toward the

front door of the gas station. As Dunkerson fled, Officer Williams ordered him

to stop, but Dunkerson did not. Therefore, Officer Williams followed

Dunkerson into the gas station store.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 3 of 11 [7] Officer Williams located Dunkerson crouching down between two aisles inside

the store. He ordered Dunkerson to show his hands and Dunkerson complied.

Officer Williams then approached Dunkerson, turned him around, and tried to

handcuff his hands behind his back. Dunkerson stiffened his right arm and

turned around to face Officer Williams “as if he was going to run or fight

[him].” Tr. at 101. Officer Williams then pressed on Dunkerson’s chest to

force him off balance, thereby regaining control of Dunkerson’s hands, and

placed Dunkerson in handcuffs. He then patted Dunkerson down for weapons

and found none.

[8] Officer Williams then walked Dunkerson outside and retraced Dunkerson’s

steps from the store entry back to the front right side of the Camry. Less than

one minute had passed since Dunkerson had initially run into the gas station

store. McCoy was still standing in the same general area where she had been

standing when Officer Williams entered the store, which was on the left side of

the Camry—i.e., the opposite side of the Camry from where Dunkerson had

been ducking before he ran into the store. McCoy had shifted slightly toward

the door of the store, which meant that she had moved further from the side of

the car where Dunkerson had been crouching.

[9] After he walked back to the Camry, Officer Williams saw a small plastic baggie

between the curb of the sidewalk and the front right tire of the Camry. The bag

contained five smaller, knotted plastic bags that each contained

methamphetamine. The total amount of methamphetamine contained in the

bags was over thirty-three grams. As Officer Williams picked up the bag and

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 4 of 11 examined it, Dunkerson repeatedly stated that “it wasn’t his.” Tr. at 103.

Officer Williams later found $130 in cash in a search of Dunkerson’s person,

but he did not find any paraphernalia for the consumption of

methamphetamine.

[10] The State charged Dunkerson with dealing in methamphetamine, as a Level 2

felony; possession of methamphetamine, as a Level 3 felony; and resisting law

enforcement, as a Class A misdemeanor. Following a jury trial held on June

21, 2018, the jury found Dunkerson guilty as charged. On July 13, the trial

court sentenced Dunkerson to seventeen years, with seven years suspended, for

dealing methamphetamine and concurrent terms of seven years for possession

of methamphetamine and one year for resisting law enforcement. This appeal

ensued.

Discussion and Decision Sufficiency of the Evidence [11] Dunkerson challenges the sufficiency of the evidence to support his convictions

for dealing and possessing methamphetamine. Our standard of review of the

sufficiency of the evidence is well-settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 5 of 11 evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

Moreover, “[a] conviction may be based on circumstantial evidence alone so

long as there are reasonable inferences enabling the factfinder to find the

defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied; see also Whitney v.

State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000) (quotation and citation

omitted) (“Where the evidence of guilt is essentially circumstantial, the

question for the reviewing court is whether reasonable minds could reach the

inferences drawn by the jury; if so, there is sufficient evidence.”).

[12] To support Dunkerson’s conviction of possession of methamphetamine, as a

Level 3 felony, the State was required to prove that Dunkerson (1) knowingly or

intentionally (2) possessed methamphetamine (3) in an amount equal to at least

twenty-eight grams. I.C. § 35-48-4-6.1(a), (d)(1). A conviction for possession

may rest on evidence which shows either actual or constructive possession.

Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). A person actually possesses

contraband when he or she has direct physical control over it. Id. A person

constructively possesses contraband when “the person has (1) the capability to

maintain dominion and control over the item; and (2) the intent to maintain

dominion and control over it.” Id. (citation omitted). Sometimes the same

circumstantial evidence may be sufficient to establish constructive possession or

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 6 of 11 to support an inference of actual possession. State v. Hill, 688 N.E.2d 1280,

1283 (Ind. Ct. App. 1997) (holding circumstantial evidence that a handgun was

laying on the back seat of a vehicle next to the defendant was sufficient to

establish constructive possession and/or to support an inference of actual

possession), trans. denied.

[13] Here, the State provided sufficient circumstantial evidence from which the jury

could infer that Dunkerson actually possessed the methamphetamine.4 The

evidence established that: Dunkerson behaved in a suspicious manner when

approached by Officer Williams—i.e., he ducked down behind a car; Officer

Williams observed Dunkerson put his hand in his pocket; Dunkerson bent

down next to the place where the drugs were eventually found, and then ran

from police; there was no evidence that, for the duration of the confrontation,

anyone else was near the place where the drugs were found; Dunkerson

continued to hide from police while in the store; Dunkerson resisted being

handcuffed; and Dunkerson repeatedly stated the drugs were not his, before

anyone even questioned him about them. From all of this circumstantial

evidence, the jury could reasonably infer that Dunkerson actually, knowingly

possessed the drugs.5 See, e.g., Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015)

(noting that evidence of flight and attempts to avoid arrest may be

4 Dunkerson does not dispute that the amount of the methamphetamine was greater than twenty-eight grams. 5 This same circumstantial evidence is also sufficient to show that Dunkerson constructively possessed the drugs; i.e., that he had the capability and intent to maintain dominion and control over them.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 7 of 11 circumstantial evidence “tend[ing] to show guilt”); see also Hayes v. State, 876

N.E.2d 373, 375-76 (Ind. Ct. App. 2007) (finding sufficient circumstantial

evidence to infer actual possession of drugs where the officer observed

defendant reach down into bin where drugs were later found and then flee from

the officer), trans. denied. Dunkerson’s contentions to the contrary are simply

requests that we reweigh the evidence, which we cannot do. Clemons, 996

N.E.2d at 1285. There was sufficient evidence to support the possession

conviction.

[14] To support Dunkerson’s conviction for dealing in methamphetamine, as a

Level 2 felony, the State was required to prove that Dunkerson (1) possessed

methamphetamine (2) in an amount equal to at least ten grams (3) with the

intent to deliver it, and (4) either the amount of methamphetamine was equal to

at least twenty-eight grams or there was evidence in addition to the weight of

the drug that Dunkerson intended to deliver it. I.C. § 35-48-4-1.1(a), (b), (e).

As previously noted, there was sufficient circumstantial evidence that

Dunkerson possessed the drugs. And there was also sufficient circumstantial

evidence to establish that Dunkerson intended to deliver the drugs. “The

possession of a large amount of narcotics is circumstantial evidence of intent to

deliver.” Adamov v. State, 536 N.E.2d 281, 283 (Ind. 1989). It is undisputed

that the amount of methamphetamine at issue in this case weighed well above

the ten grams required to prove dealing as a Level 2 felony and also above the

twenty-eight grams required to prove intent to deliver based solely on the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 8 of 11 weight of the drugs. I.C. § 35-48-4-1.1(b). Therefore, there was sufficient

evidence to support Dunkerson’s dealing conviction.

Jury Instructions [15] Dunkerson challenges the trial court’s denial of his request to include the

“reasonable theory of innocence” language in the jury instruction regarding

circumstantial evidence.

Because instructing the jury is a matter within the sound discretion of the trial court, we will reverse a trial court’s decision to tender or reject a jury instruction only if there is an abuse of that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013). We determine whether the instruction states the law correctly, whether it is supported by record evidence, and whether its substance is covered by other instructions. Id. at 345– 46. “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996)).

Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). Moreover, we will disregard

an instruction error as harmless unless it affects the substantial rights of a party.

Ind. Trial Rule 61. “Errors in the giving or refusing of instructions are harmless

where a conviction is clearly sustained by the evidence and the jury could not

properly have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233 (Ind.

2001).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 9 of 11 [16] It is clear that a “reasonable theory of innocence” instruction should be given to

the jury when the only evidence of the commission of the crime is

circumstantial. Hawkins v. State, 100 N.E.3d 313, 316 (Ind. Ct. App.) (citing

Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012)); see also 2 Indiana Judges

Association, Indiana Pattern Jury Instructions—Criminal, 4th Ed., 13.1000

(Matthew Bender). The specific language approved in Hampton when the “actus

reus,” i.e., conduct required to commit the crime, is established solely by

circumstantial evidence is: “In determining whether the guilt of the accused is

proven beyond a reasonable doubt, you should require that the proof be so

conclusive and sure as to exclude every reasonable theory of innocence.” 961

N.E.2d at 491. This instruction may be placed in either the circumstantial

evidence instruction or the reasonable doubt instruction. Hawkins, 100 N.E.3d

at 318 n.6.6

[17] Here, as we concluded above, the only evidence of Dunkerson’s actus reus—i.e.,

possessing the large amount of drugs—is circumstantial. Therefore, the trial

court was required to give the jury the reasonable theory of innocence

instruction,7 the substance of which was not covered by the other instructions

6 In arguing that the reasonable theory of innocence language may only be given in the reasonable doubt instruction, State’s Br. at 15 n.3, the State apparently misreads footnote 6 of the Hawkins decision, which states: “We note that the reasonable theory of innocence instruction could be placed in the instruction on direct and circumstantial evidence, as Hawkins requested, or in the reasonable doubt instruction, as the Indiana Pattern Jury Instructions, Criminal, suggest.” 100 N.E.3d at 318. 7 The trial court was not required to give the reasonable theory of innocence language specifically proposed by Dunkerson; as the State notes, the Hampton court disapproved of the confusing wording “proof of guilt by circumstantial evidence only,” which was the wording proposed by Dunkerson. Hampton, 961 N.E.2d at

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 10 of 11 given. However, the trial court’s error in failing to give that instruction was

harmless, as Dunkerson’s convictions were clearly sustained by the evidence

and a reasonable jury could not properly have found otherwise. Dill, 741

N.E.2d at 1233.

Conclusion [18] The State provided sufficient evidence to support Dunkerson’s convictions for

possessing and dealing methamphetamine. And, although the trial court

erroneously failed to give the jury a reasonable theory of innocence instruction,

that error was harmless.

[19] Affirmed.

Bradford, J., and Brown, J., concur.

489-90. However, the trial court was required to give the correctly worded reasonable theory of innocence instruction, as outlined in Hampton. Hawkins, 100 N.E.3d at 316.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1881 | February 13, 2019 Page 11 of 11