964 N.E.2d 855
Ind. Ct. App.2012Background
- Garrett was a passenger in a car stopped by police; drugs and weapons were found on her person and in the car.
- There was about twenty-six grams of methamphetamine in Garrett’s possession; other drug paraphernalia was found.
- Garrett claimed Haines, the driver, was the dealer and she merely possessed items; she sought a lesser-included instruction for possession.
- The trial court refused to give the lesser-included instruction; Garrett was convicted of dealing methamphetamine (Class A felony) and possessing a handgun.
- The State argued waiver; the court analyzed the issue and Garrett appealed on the merits, focusing on the failure to instruct on possession.
- The appellate court reversed and remanded for a new trial due to a serious evidentiary dispute about Garrett’s intent to deal methamphetamine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not instructing on possession | Garrett | Garrett | Reversed; failure to give possession instruction improper |
| Whether Garrett waived the issue by not tendering an instruction | Garrett | State | No waiver; court had opportunity to consider request |
Key Cases Cited
- Wright v. State, 658 N.E.2d 563 (Ind. 1995) (three-part test for lesser-included offenses; focus on serious evidentiary dispute)
- Porter v. State, 671 N.E.2d 152 (Ind.Ct.App.1996) (intent disputes support giving lesser offense instruction)
- Burgin v. State, 431 N.E.2d 864 (Ind.Ct.App.1982) (possession as exception to prescription element; note in context of lesser offense)
- Richardson v. State, 856 N.E.2d 1222 (Ind.Ct.App.2006) (possession as lesser offense of possession with intent to deliver)
- Mitchell v. State, 742 N.E.2d 953 (Ind.2001) (tendered instruction required to preserve error)
- Scisney v. State, 701 N.E.2d 847 (Ind.1998) (preservation of error in instruction issues)
- Champlain v. State, 681 N.E.2d 696 (Ind.1997) (de novo review for serious evidentiary disputes)
- McDowell v. State, 885 N.E.2d 1260 (Ind.2008) (waiver analysis where trial court engaged in colloquy with counsel)
- Turner v. State, 751 N.E.2d 726 (Ind.Ct.App.2001) (illustrates evaluating lesser-included offenses when testimony supports alternative explanations)