Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
June 28, 2001
Over Defendants objection, the State tendered the following jury instruction numbered 32A:
The possession of a large amount of cocaine is circumstantial evidence of intent
to deliver. If you find from the facts presented that the defendant
was in possession of an amount of cocaine that is greater than that
needed for his own personal use, you may infer that the defendant possessed
the cocaine with the intent to deliver it to other persons.
(R. at 162) (emphases added).
Defendant specifically argues that the instruction improperly posits that there [is] proof beyond a reasonable doubt on the disputed element of possession and categorically states that possession of almost 140 grams of crack cocaine proves the disputed element of intent to deliver. Appellants Br. at 21. To lend support to his argument, Defendant relies heavily on our decision in Chandler v. State, 581 N.E.2d 1233 (Ind. 1991). See footnote In Chandler, this Court vacated the defendants dealing in cocaine conviction because we found that the jury instruction on this charge was misleading and erroneous. Id. at 1236. The troublesome jury instruction read in full, Possession of a large amount of narcotics is circumstantial evidence of intent to deliver. See footnote Id. We found that rather than merely instructing the jury to determine whether the defendant possessed narcotics, the instruction implicitly suggested that the defendant was in fact in possession. Id. We also found that rather than merely instructing the jury that it could consider the evidence of possession of a large quantity of contraband as proof of intent to deliver, the categorical form of the instruction commanded the jury to do so. Id. We therefore held that the instruction improperly invaded the jurys province.
This same issue arose in
Williams v. State, 658 N.E.2d 598 (Ind. Ct.
App. 1995), rehg denied. There, the defendant referred the court to the
Chandler case when challenging the tendered jury instruction identical to the one objected
to in this case. Id. at 604. In finding that the
instruction did not constitute fundamental error, the Court of Appeals reasoned, the two
sentences of the instruction taken together do not command the jury to reach
a particular result but rather invite them to consider certain evidence as proof
of a required element. Id. at 605.
David v. State, 669 N.E.2d 390, 391-93 (Ind. 1996), rehg denied, this
Court dealt with a similar jury instruction claimed to be reversible error.
The instruction for dealing in cocaine read as follows:
Possession of a large amount of a controlled substance is circumstantial evidence of the defendant's intent to deliver. The greater the amount in possession, the stronger the inference he intends it for delivery and not for personal consumption.
Id. at 391.
Similar to the instructions in
Chandler, Williams, and the present case, the David
instruction contains the defective sentence that possession of a large amount of narcotics
is circumstantial evidence of intent to deliver, see Chandler, 581 N.E.2d at 1236;
Williams, 658 N.E.2d at 604; (R. at 162), and thus standing alone the
sentence improperly commands the jury to make such a finding. However, in
David, we further found that the second sentence removes any categorical finding of
intent which may have been posited by the first sentence. Rather, it
allows the jury to determine if the defendant had possession of enough heroin
in order to infer intent to deliver. David, 669 N.E.2d at 393.
We therefore found no reversible error in the jury instruction.
Likewise, the instruction in this case (and Williams) provides additional guidance for determining proof of possession and the intent to deliver: If you find from the facts presented that the defendant was in possession of an amount of cocaine that is greater than that needed for his own personal use, you may infer that the defendant possessed the cocaine with the intent to deliver it to other persons. (R. at 162) (emphases added).
We are persuaded by the analysis in
Williams and are guided by David
to find that the second sentence of the instruction offsets the error identified
in Chandler. The additional phraseyou may infer that the defendant possessed the
cocaine with the intent to deliver calls on the jury to perform its
traditional role as the trier of fact first to determine if Defendant actually
possessed cocaine, and then to determine if the almost 140 grams of cocaine
proves beyond a reasonable doubt the intent to deliver. Put another way,
the second sentence of the instruction saved the jury from operating under the
incorrect proposition that evidence showing possession of a large amount of cocaine invariably
proves the intent to deliver. See David v. State, 669 N.E.2d 390
(Ind. 1996); Morgan v. State, 675 N.E.2d 1067, 1071 (Ind. 1996).
In short, the first sentence of the instruction was highly problematic (and for
ason should not be used). But we find that the second
sentence sufficiently recognized the authority of the jury to make its own determination
of whether Defendant possessed a large amount of cocaine and had the requisite
intent to deliver it. We therefore conclude that Defendant is entitled to
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., dissents without opinion.