Tanya A. Littleton v. State of Indiana

T
      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria Bailey Casanova                                  Curtis T. Hill, Jr.
      Casanova Legal Services, LLC                              Attorney General of Indiana
      Indianapolis, Indiana                                                                           FILED
                                                                Tiffany A. McCoy                 Dec 30 2020, 9:06 am

                                                                Deputy Attorney General               CLERK
                                                                Indianapolis, Indiana             Indiana Supreme Court
                                                                                                     Court of Appeals
                                                                                                       and Tax Court




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tanya A. Littleton,                                       December 30, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A-CR-1159
              v.                                                Appeal from the Franklin Circuit
                                                                Court
      State of Indiana,                                         The Honorable J. Steven Cox,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                24C01-1707-F3-1021



      Najam, Judge.


                                        Statement of the Case
[1]   Tanya A. Littleton appeals her convictions for dealing in methamphetamine, as

      a Level 3 felony, and maintaining a common nuisance, a Level 6 felony,

      following a jury trial. She also appeals the court’s order that she reimburse the

      Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020                   Page 1 of 12
      county for a portion of the attorney’s fees incurred by her court-appointed

      counsel. Littleton raises two issues for our review, which we revise and restate

      as follows:


              1. Whether the trial court erred as a matter of law when it did
                 not tender her proffered jury instruction on the presumption
                 of innocence.


              2. Whether the trial court committed fundamental error when it
                 ordered her to reimburse the county for a portion of the public
                 defender’s fees.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In July 2017, Littleton was living in a detached two-car garage. Littleton often

      smoked methamphetamine in her residence with Richard Reese, who lived in

      the trailer next to the garage. Littleton “always” smoked methamphetamine

      with Reese when Reese wanted to get high, and Littleton “provided” the

      methamphetamine to Reese. Tr. Vol. 3 at 8, 18. In addition, “[l]ots of people”

      would go to Littleton’s residence “and do meth.”

Id. at 13.

It was a “social

      thing.”

Id. [4]

  On July 29, officers with the Franklin County Sheriff’s Department executed a

      search warrant at Littleton’s residence. When officers arrived, Littleton and

      two other individuals were in the garage, and Reese was in the backyard with

      his two-year-old daughter. Reese directed the officers to a toolbox, where they


      Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020     Page 2 of 12
      found a baggie that contained 1.17 grams of methamphetamine, 1 a digital scale,

      a firearm, and an empty plastic baggie. Throughout the rest of Littleton’s

      residence, officers also found plastic corner baggies, another digital scale, pipes

      that contained “burnt black residue[],” and five cell phones. Tr. Vol. 2 at 179.


[5]   The State charged Littleton with dealing in methamphetamine, as a Level 3

      felony, and maintaining a common nuisance, a Level 6 felony. After her initial

      hearing, Littleton filed a motion for a court-appointed attorney. Following a

      hearing at which Littleton stated that she did not have any assets, the court

      found that Littleton was indigent and appointed counsel to represent her.


[6]   Thereafter, a private attorney began representing Littleton. In his appearance,

      that attorney stated that Littleton was “indigent” and that he was representing

      her pro bono. Appellant’s App. Vol. 2 at 54. Littleton’s court-appointed

      attorney then filed a motion to withdraw his appearance. The court found that,

      “due to the change of [Littleton’s] financial status,” it would only grant the

      motion to withdraw on the condition that Littleton pay the county $693 for the

      attorney’s fees her court-appointed attorney had incurred.

Id. at 60.

      Specifically, the court stated that, “[i]f she can hire counsel, then she’s no longer

      indigent[.]” Tr. Vol. 2 at 28. Littleton paid the fees without objection, and the

      court granted the court-appointed attorney’s motion to withdraw his




      1
        Officers found a second baggie that contained 0.92 gram of a white crystalline substance. However, due to
      the laboratory’s schedule, it did not test the substance in that baggie.

      Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020                          Page 3 of 12
      appearance. The matter then proceeded to a jury trial where Littleton was

      represented by private counsel.


[7]   At the beginning of her trial, Littleton proffered a preliminary jury instruction

      on the presumption of innocence. Her proffered instruction read, in relevant

      part, as follows:


               Under the law 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 and you should fit the evidence presented to the
               presumption that the Defendant is innocent, if you can
               reasonably do so.


      Appellant’s App. Vol. 2 at 82. The trial court did not give that proffered

      instruction. 2 Instead, the court instructed the jury that, “[u]nder the law of this

      State, a person charged with a crime is presumed to be innocent. To overcome

      the presumption of innocence, the State must prove the defendant guilty of each

      essential element of the crime charged, beyond a reasonable doubt.”

Id. at 107. [8]

  Following the presentation of evidence, Littleton tendered the same instruction

      regarding the presumption of innocence. The court declined to give her

      proffered final instruction and instead again instructed the jury that “a person

      charged with a crime is presumed to be innocent. To overcome the




      2
       At the beginning of voir dire, the trial court mentioned that the parties had addressed all preliminary
      matters. However, the transcript does not contain any discussion on preliminary jury instructions.

      Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020                              Page 4 of 12
       presumption of innocence, the State must prove the Defendant guilty of each

       essential element of the crime charged, beyond a reasonable doubt.”

Id. at 111.

       The court also instructed the jury that


               [t]he law presumes the Accused is innocent of any crime. The
               Accused enters upon the trial with this presumption in his/her
               favor, and it goes with him/her throughout the trial, step by step,
               and it is your duty to weigh the evidence from the standpoint of
               the Accused’s innocence, if you can reasonably do so. The
               burden of proof throughout is with the State of Indiana not only
               when the trial begins, but throughout trial to its conclusion.

Id. at 121. [9]

   The jury found Littleton guilty as charged. The court entered judgment of

       conviction accordingly and sentenced Littleton to an aggregate term of eleven

       years in the Department of Correction. This appeal ensued.


                                       Discussion and Decision
                                         Issue One: Jury Instruction

[10]   Littleton first asserts that the trial court erred as a matter of law when it refused

       to give her proffered preliminary and final jury instruction on the presumption

       of innocence. In general, trial courts have broad discretion on how to instruct

       the jury. See McCowan v. State, 

27 N.E.3d 760

, 763 (Ind. 2015). However, as it

       relates to jury instructions on the presumption of innocence, our Supreme

       Court has created a “bright-line rule” and declared that a




       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020       Page 5 of 12
               defendant in a criminal case is per se entitled to a jury instruction
               that the defendant is presumed innocent until proven guilty
               beyond a reasonable doubt. In addition, the defendant is entitled
               to request the following jury instruction, and the trial court must
               give this instruction if requested: “The presumption of innocence
               continues in favor of the defendant throughout the trial. You
               should fit the evidence to the presumption that the defendant is
               innocent if you can reasonably do so.”

Id. at 766

(emphases added; citations omitted).


[11]   In other words, the Court held not only that a defendant is per se entitled to a

       jury instruction on the presumption of innocence but also that, when requested,

       our trial courts do not have discretion whether to instruct the jury that the

       presumption of innocence continues throughout the trial. Accordingly, where a

       trial court declines to give a proffered jury instruction that includes the language

       in McCowan, we consider whether the court erred as a matter of law, which is a

       question we review de novo. See Claire’s Boutiques, Inc. v. Brownsburg Station

       Partners LLC, 

997 N.E.2d 1093

, 1097 (Ind. Ct. App. 2013) (where “the dispute

       is one of law rather than fact, our standard of review is de novo.”).


[12]   As stated above, Littleton requested the following as both a preliminary and

       final jury instruction:


               Under the law 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 and you should fit the evidence presented to the
               presumption that the Defendant is innocent, if you can
               reasonably do so.

       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020           Page 6 of 12
       Appellant’s App. Vol. 2 at 82. 3 The court declined to give that instruction and

       instead provided its own instructions. On appeal, Littleton asserts “the trial

       court was required to give the McCowan language if [she] requested it.”

       Appellant’s Br. at 15. And she asserts that she “requested it.”

Id. Littleton maintains, in

effect, that the trial court erred as a matter of law when it declined

       to give her proffered instruction.


[13]   While Littleton requested a jury instruction that contained almost the exact

       language as that provided in McCowan, the court refused to give that instruction

       and, instead, gave its own final jury instruction on the presumption of

       innocence. Specifically, the court instructed the jury that the


                law presumes the Accused is innocent of any crime. The
                Accused enters upon the trial with this presumption in his/her
                favor, and it goes with him/her throughout the trial, step by step,
                and it is your duty to weigh the evidence from the standpoint of
                the Accused’s innocence, if you can reasonably do so. The
                burden of proof throughout is with the State of Indiana not only
                when trial begins, but throughout the trial to its conclusion.


       Appellant’s App. Vol. 2 at 121.


[14]   It would have been the better practice for the trial court to give an instruction

       that included the same words prescribed by our Supreme Court, which would




       3
        Littleton’s proffered jury instruction contained additional language that was not included in McCowan and
       which the court did not give. But Littleton “does not challenge the trial court’s decision to refuse the non-
       McCowan language[.]” Appellant’s Br. at 14 n.1.

       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020                             Page 7 of 12
       have obviated an appeal on this issue and the need for this Court to parse the

       language used in the instruction given. Nevertheless, we cannot say that the

       court erred as a matter of law when it instructed the jury.


[15]   In McCowan, the Supreme Court stated unambiguously that a defendant is

       entitled to a jury instruction that she is presumed innocent until proven guilty

       beyond a reasonable doubt and, when requested, an instruction that: the

       “presumption of innocence continues in favor of the defendant throughout the

       trial. You should fit the evidence to the presumption that the defendant is

       innocent if you can reasonably do so.” 

McCowan, 27 N.E.3d at 766

. While the

       Court in McCowan designated a specific instruction to be given when requested,

       we do not believe the Court intended that trial courts only give that instruction

       verbatim. Rather, we understand McCowan to require our trial courts to give a

       jury instruction that a defendant is presumed innocent until proven guilty

       beyond a reasonable doubt and also, if requested, an instruction that the

       presumption of innocence continues throughout the trial and that the jury

       should consider the evidence under the presumption of innocence.


[16]   Here, the court instructed the jury that the “law presumes the Accused is

       innocent of any crime” and that the “Accused enters upon the trial with this

       presumption in his/her favor, and it goes with him/her throughout the trial,

       step by step, and it is your duty to weigh the evidence from the Standpoint of

       the Accused’s innocence if you can reasonably do so.” Appellant’s App. Vol. 2

       at 121. That instruction, while stated differently than the language provided in

       McCowan, contained the same substantive information as the instruction in

       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020    Page 8 of 12
       McCowan. Namely, it instructed the jury that Littleton was presumed innocent

       of any crime, that that presumption continued with her throughout the trial,

       and that the jury was to consider the evidence under the presumption that she is

       innocent if reasonably possible. Accordingly, we conclude that the instruction

       given was equivalent to the instruction in McCowan.


[17]   Importantly, we note that Littleton has not identified significant differences

       between her proffered instruction and the final instructions the court gave. Nor

       has she explained what impact this deviation from the McCowan instruction

       may have had on the jury or how she was prejudiced by the court’s decision to

       give instructions that were equivalent in substance to the instruction provided in

       McCowan instead of hers. In other words, Littleton has failed to show that there

       was a substantial and material difference between the instruction prescribed by

       our Supreme Court and the instruction actually given. Rather, Littleton simply

       argues that the court erred when it did not give an instruction that included the

       precise language the Supreme Court used in McCowan. But as discussed above,

       the court’s final instruction, while not exactly the same as the instruction in

       McCowan, provided the same information to the jury.


[18]   While our trial courts generally have discretion when instructing the jury,

       where our Supreme Court has directed that a specific instruction be given, we

       urge trial courts to use that language. But, here, despite the trial court’s use of

       its own instruction over an instruction close to that provided in McCowan, we

       hold that the court did not err as a matter of law when it instructed the jury.

       We therefore affirm Littleton’s convictions.

       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020      Page 9 of 12
                                      Issue Two: Public Defender Fee

[19]   Littleton next asserts that the trial court committed fundamental error when it

       ordered her to pay $693 in public defender fees after her private counsel entered

       his appearance. Littleton acknowledges that she paid the fee without objecting

       or otherwise challenging the trial court’s order. Thus, to prevail on appeal,

       Littleton must demonstrate that the court committed fundamental error.


[20]   The fundamental error rule is “extremely narrow” and occurs “only when the

       error ‘constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.’” Kimbrough v. State, 

911 N.E.2d 621

, 634 (Ind. Ct. App. 2009)

       (quoting Boesch v. State, 

778 N.E.2d 1276

, 1279 (Ind. 2002)).


[21]   On appeal, Littleton makes thorough and cogent argument on the question of

       whether the trial court abused its discretion when it ordered her to pay the

       public defender fee. But the question presented here is not whether the court

       abused its discretion. The question is whether any error by the trial court

       amounted to fundamental error. Littleton’s argument on the question of

       fundamental error is inadequate and consists only of the following:


               The trial court’s decision to order Ms. Littleton to reimburse the
               county for the cost of her court-appointed counsel’s
               representation, despite no evidence that she was able to pay that
               cost, was a clear violation of her right to the appointment of
               counsel at taxpayer expense and, therefore, fundamental error.




       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020     Page 10 of 12
       Appellant’s Br. at 22. In essence, her argument is simply that the court

       committed fundamental error when it imposed that fee because it violated a

       constitutional right.


[22]   But to invoke the doctrine of fundamental error, “it is not enough to urge that a

       constitutional right is implicated.” Dickerson v. State, 

957 N.E.2d 1055

, 1057

       (Ind. Ct. App. 2011). Instead, the defendant must demonstrate that the

       constitutional error worked to her actual and substantial disadvantage, infecting

       and tainting the entire trial. See

id. In other words,

“the error must be so

       prejudicial to the rights of the defendant to make a fair trial impossible.”

Id. [23]

  On appeal, Littleton does not explain how the imposition of public defender fee

       worked to her actual and substantial disadvantage, how it made a fair trial

       impossible, or how it denied her fundamental due process. Because Littleton

       has not made cogent argument in support of her fundamental error claim, it is

       waived. Waiver notwithstanding, the record demonstrates that, following her

       request for a public defender, Littleton was represented by either a court-

       appointed attorney or her private attorney throughout the underlying

       proceedings. Accordingly, even if the court erred when it ordered her to pay

       the public defender’s attorney’s fees, we cannot say that any error amounted to

       fundamental error.


[24]   In sum, we affirm Littleton’s convictions and the court’s order that she pay

       $693 to the county for the public defender’s fees.




       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020    Page 11 of 12
[25]   Affirmed.


       Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-1159 | December 30, 2020   Page 12 of 12

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