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The State charged McKinley with dealing in cocaine as a Class A felony and possession of cocaine as a Class C felony. …
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During closing argument, the State echoed the trial court’s preliminary instruction: “In order to find the defendant guilty of Count I, Dealing in Cocaine, you would have to believe that on or about May 21st, 2014, the defendant did knowingly . . . possess with the intent to deliver cocaine in the amount of three grams.” (emphasis added).
Prior to jury deliberations, the trial court read additional instructions, which included in relevant part:
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To convict the Defendant of Dealing in Cocaine, as charged in Count I, the State must have proved each of the following beyond a reasonable doubt: On or about May 21, 2014 Defendant
1. knowingly
2. possessed with intent to deliver
3. a controlled substance, that is: cocaine, pure or adulterated
4. in an amount greater than three (3) grams.
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(emphasis added). The trial court did not define “intent to deliver.” …
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McKinley contends the jury instructions misstated the requisite mental state for possession of cocaine with intent to deliver. … Our review of the record shows McKinley never objected to the court’s instructions concerning the elements of possession with intent to deliver. Nonetheless, McKinley argues the alleged error was fundamental.
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McKinley argues the trial court erred by including the word “knowingly” as an element of possession of cocaine with intent to deliver, “when by statute that crime requires specific intent rather than mere ‘knowing’ conduct.” He believes the State was required to prove “specific intent with respect to every material element of the offense: possession, delivery, weight, and intent that the substance was actually cocaine.” …
We disagree…. McKinley’s … reliance on Indiana Code section 35-41-2-2(d) is misplaced.
Indiana Code section 35-41-2-2(d) provides: “Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.” Our supreme court has clarified the applicability of Indiana Code section 35-41-2-2(d) in the context of Indiana’s child molesting statute:
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Because the child molesting statute requires the jury to find, with respect to the element of “arouse or satisfy . . . sexual desires,” defendant acted intentionally, the Court of Appeals and Defendant reason that Ind. Code § 35-41-2-2(d) requires “intentional” mental culpability with respect to every element of the child molesting offense. But … an “intentional” mental state is not required by the child molesting statute for commission of the offense, only for a single element of the offense. There is nothing in Ind. Code § 35-41-2-2(d) to suggest that … if a kind of culpability is required for one (but only one) material element of the prohibited conduct, it is required for commission of the offense and every material element of it.
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Louallen v. State, 778 N.E.2d 794, 795-98 (Ind. 2002)….
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… Applying the reasoning of Louallen and Bookwalter [v. State, 22 N.E.3d 735, 741-42 (Ind. Ct. App. 2014), trans. denied (holding that dealing offense may be enhanced based on weight of the drug, without “proof of intent to deliver a specific weight of drugs”)], we disagree with McKinley’s contention that specific intent is required with respect to every element of possession of cocaine with intent to deliver as a Class A felony. And although the word “knowingly” does not appear in Indiana Code section 35-48-4-1(a)(2), we furthermore conclude the jury instructions in the present case do not constitute fundamental error.
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… [A]ssuming “knowingly” should not be included in a jury instruction on the elements of possession with intent to deliver,5 we believe the instructions in the present case sufficiently inform the jury of the requirement of intent to deliver. “Intent to deliver” was listed as an element of the offense during preliminary jury instructions, the State’s closing argument, and final jury instructions. Moreover, closing arguments from both sides focused almost exclusively on whether the State had established McKinley’s intent to deliver. …
[Footnote 5:] The State cites several cases in which this court has stated Indiana Code section 35-48-4-1(a)(2)(C) requires the State to prove that a defendant “knowingly” possessed cocaine with intent to deliver. See, e.g., Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied; Upshaw v. State, 934 N.E.2d 178, 183 (Ind. Ct. App. 2010), trans. denied; Turner v. State, 878 N.E.2d 286, 295 (Ind. Ct. App. 2007), trans. denied; Stokes v. State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied.
… Although defining “intent to deliver” may have been preferable, terms in common use that can be understood by a person of ordinary intelligence do not always need to be defined. [Citation omitted.] Reading the jury instructions as a whole and in the context of all the information given to the jury, we cannot say the instructions were misleading regarding the requirement of intent to deliver. Accordingly, we find no fundamental error in the trial court’s instruction of the jury.
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Vaidik, C.J., and Pyle, J., concur.