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Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-06-18 11:22:20 DIVISIONS I, III & IV Foxit PhantomPDF Version: 9.7.5 No. CR-18-1057

Opinion Delivered December 4, 2019

RODNEY HARMON APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT APPELLANT [NO. 23CR-15-702]

HONORABLE CHARLES E. V. CLAWSON, JR., JUDGE

AFFIRMED IN PART; REVERSED STATE OF ARKANSAS AND REMANDED IN PART

APPELLEE

LARRY D. VAUGHT, Judge

Rodney Harmon appeals his convictions by a Faulkner County Circuit Court jury of

trafficking methamphetamine within 1,000 feet of a school-bus stop, simultaneous possession

of drugs and firearms, possession of drug paraphernalia, and maintaining a drug premises

within 1,000 feet of a school-bus stop. Harmon was sentenced to an aggregate term of forty

years’ imprisonment in the Arkansas Department of Correction (“ADC”). On appeal, he

asserts that the circuit court erred (1) by refusing to direct the State to obtain possibly existing

video of the search of Harmon’s home; (2) by denying the defense’s request for a continuance;

(3) by granting the State’s motion in limine to exclude testimony regarding HBO documentary

filmmakers who may have filmed the search of Harmon’s home; (4) in allowing a nonmodel

jury instruction on the trafficking charge; and (5) by allowing the State to play a recording during the penalty phase of the trial of Harmon making a controlled drug buy through an

informant who was not present to testify. We affirm in part and reverse and remand in part.

The charges arose from the execution of a search warrant for Harmon’s home in

Vilonia on September 17, 2015. Officers of the Twentieth Judicial District Drug Task Force,

the Faulkner County Sheriff’s Office, and the United States Drug Enforcement Agency

conducted the search. An HBO documentary film crew was present pursuant to an agreement

with law enforcement. The crew consisted of two documentarians—the Renaud brothers—

and a camera operator. They were working on a documentary entitled Meth Storm, which

subsequently aired on the HBO network. The filmmakers did not participate in the search but

filmed it. The search of Harmon’s home was not in the aired documentary, but the credits for

the documentary thanked the judge and the deputy prosecuting attorney who handled

Harmon’s case.

The presence of the film crew was unknown to the prosecutor for more than a year

after the search took place. On January 24, 2017, the prosecutor learned of the documentary

and alerted the defense to the film crew’s presence at the search. The prosecutor stated that

she did not have any of the film footage but provided contact information for one of the

documentarians who was present at the search, Craig Renaud.

On January 30, Harmon filed a motion for a continuance on the basis of this new

information, which was granted. The court held a hearing on February 3, at which defense

counsel raised the issue of whether the HBO film crew could be considered agents of the State

because they had been granted permission to be there by the DEA and local officials. Counsel

argued that whatever footage might exist could be relevant and subject to disclosure, and

2 depending on the contents, the defense might want to file an amended motion to suppress.

The prosecutor explained that the State did not possess any of HBO’s video footage, that she

had contacted HBO to try to obtain it, and that she had not been successful. She stated that

she had provided the defense with all the information she had.

Throughout the succeeding months, Harmon sought both the video and the identities

of all people who were present at the search of his home, but he was unable to obtain this

evidence. The circuit court issued an order to “whomever shall be in possession and/or

ownership” of the video, but the court denied Harmon’s request for an order requiring the

prosecution to obtain and provide it, rejecting Harmon’s argument that the producers were

State actors at the time of the search. The court also denied Harmon’s motion for a

continuance of the trial until the video was obtained and all persons present were identified.

The court further granted the prosecution’s motion in limine to forbid mention of the fact

that HBO personnel were present at the search. Following the court’s ruling that Harmon

could not mention at trial the presence of the film crew at the search, he proffered testimony

of two officers regarding why they had intentionally chosen not to list the film crew when

writing reports and documents about the search. The court also issued an order for the benefit

of the defense to the persons who were in control of the recording requiring them to provide

this information, but the defense was not able to locate the recording or even get in touch

with the people who would have had control of it.

On June 12, 2018, the State filed a motion to use a non-AMI jury instruction on the

trafficking charge. The State proffered a jury instruction that added a series of factors for the

jury to consider. This part of the modified instruction was pulled from the model instruction

3 for a different offense, possession with purpose to deliver. The court allowed the non-AMI

jury instruction. Harmon proffered the standard AMI instruction and objected to the State’s

request for a non-AMI instruction.

Harmon was convicted of trafficking methamphetamine within 1,000 feet of a school

bus stop, simultaneous possession of drugs and firearms, possession of drug paraphernalia,

and maintaining a drug premises within 1,000 feet of a school-bus stop. During the penalty

portion of the trial, the State moved to introduce video recordings of drug purchases that

Harmon allegedly made from a confidential informant, Shannon Daniels, who was not present

to testify. Harmon objected, arguing that the evidence was more prejudicial than probative,

and the court overruled his objection. The jury imposed an aggregate forty-year sentence.

Questions of law, such as the interpretation of discovery rules found in the Arkansas

Rules of Criminal Procedure, are reviewed de novo. Muhammad v. State,

,

(1999). However, when we review a court’s rulings regarding alleged

violations of the rules of discovery, the standard of review is abuse of discretion. Hicks v. State,

,

(2000). The standard of review for denial of a

continuance is also abuse of discretion. Price v. State,

,

(2006). Likewise, the standard of review for admission or rejection of evidence is abuse of

discretion. O’Neal v. State,

,

(2004).

Harmon’s first point on appeal is a challenge to the court’s denial of his request to

require the prosecution to obtain the HBO video footage of the search of his home and

produce it in response to his discovery requests. Harmon concedes that the analysis on this

issue hinges on whether the documentary filmmakers should be deemed State actors, which

4 he describes as a “novel question.” Indeed, Harmon cites no authority for the assertion that

documentary filmmakers present during the search of a home are considered State actors. The

sum of his argument is that “[t]he State cannot accept the benefit of the bargain with the

production company—i.e. the presumably good publicity—and then disclaim the obligations

going along with it. To have any other rule would be to invite chaos and unaccountability in

law enforcement.”

Harmon has cited a series of cases, none of which are directly on point. Regarding

whether the film crew could be considered State actors, Harmon relies on Wilson v. Layne,

(1999), in which the United States Supreme Court established Fourth Amendment

boundaries for ride-along film crews, holding that while executing an arrest warrant on private

property, police who invite representatives of the media to accompany them can be held in

violation of the Fourth Amendment’s prohibition of unreasonable search and seizure. Wilson

is a Fourth-Amendment case that deals with the added intrusion of having a film crew brought

into one’s home during a search. Harmon has not alleged a Fourth-Amendment violation, and

Wilson simply does not support his argument that the “good publicity” generated by the HBO

documentary caused the filmmakers to rise to the level of State actors for discovery purposes.

Harmon also cites Pointer v. Texas, a confrontation-clause case in which the Supreme

Court held that it was unconstitutional for the court to allow a transcript of a witness’s prior

testimony to be admitted when the defendant could not cross-examine the witness.

(1965). Again, this case is simply not on point because the prosecution did not

attempt to introduce any evidence related to the HBO documentary.

5 Harmon further relies on Brady v. Maryland, in which the United States Supreme Court

held “that the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

(1963). Harmon

asserts that his due-process rights were violated because the State was obligated to provide the

video as exculpatory evidence. Harmon’s reliance on Brady is misplaced because he has not

established an obligation to produce evidence that the prosecution never possessed. Moreover,

the video was never demonstrated to be evidence favorable to the accused, and the facts of

this case do not support the conclusion that this evidence was suppressed. The State made

numerous attempts to obtain the evidence but, like the defense, was unable to do so.

Harmon next cites Foreman v. State,

,

, 929–30 (1997),

in which our supreme court recited the standard for the necessity of producing witnesses to a

custodial statement:

Statements given by accused persons who are in police custody are presumed to be involuntarily given; thus, the burden is on the State to prove voluntariness. As a part of overcoming that burden, the State must produce at a [Jackson v.] Denno [

(1964)] hearing all of the persons who were witnesses to the taking of the statement or explain their absence. When the necessary witnesses are not produced, and no satisfactory explanation of their absence is forthcoming, we hold that evidence of the accused that his statement was involuntarily given “stands uncontradicted.”

Harmon focuses on the requirement that the State must produce all witnesses and likens the

search of his home to a custodial statement in order to invoke such a rule here. Foreman is not

on point to the issue before us in the present appeal, and we decline Harmon’s invitation to

hold that searches of one’s home should be governed by the same rules applicable to custodial

statements.

6 The most relevant precedent is Barrow v. State,

,

,

which does not warrant reversal. Barrow was charged with sexual misconduct and argued that

the State violated discovery requirements by failing to provide information concerning the

victims’ medical treatment. Barrow argued that “the prosecutor was in a close relationship

with the victims by representing their interests and also had a relationship with police officers,”

both of whom possessed information that was relevant to his defense, and that such

information should be imputed to the prosecution for discovery purposes. Barrow,

, 377 S.W.3d at 489–90. Our court held that the issue was not preserved;

however, we offered an alternative decision that the “open file” policy meant that the defense

had access to any information the State had and that if “appellant thought that the victims’

medical records might have assisted his defense, he could have conducted his own

investigation instead of solely relying on discovery.” Id. at 13,

. The most

relevant holding in Barrow is the response to Barrow’s assertion that the medical records could

have provided exculpatory evidence to be used in cross-examination:

That argument presupposes that the State had access to and knowledge of the records and their contents, which appellant has failed to demonstrate. To the contrary, the prosecutor informed the circuit court that the State did not possess or have access to the victims’ medical records. Because the medical facilities are not law-enforcement agencies, the prosecutor had no duty to obtain the records under Rule 17.3. In the absence of a showing by appellant that the State had access to the records, no discovery violation occurred.

Id. at 14, 15,

. As in Barrow, Harmon has failed to show that the State had

access to the HBO film, and without such a showing, there is no discovery violation.

Harmon has not demonstrated that Arkansas Rules of Criminal Procedure 17.1(c) and

17.4(a) are applicable here. Rule 17.1(c) sets forth that the prosecuting attorney shall, upon

7 timely request, disclose and permit inspection, testing, copying, and photocopying of any

relevant material regarding any specific searches and seizures. The prosecuting attorney did

not have the “relevant material” regarding the search and seizure to disclose or permit

inspection of. Moreover, there was testimony that when the prosecuting attorney learned of

the film crew’s presence, she contacted defense counsel and gave them all the information she

had.

Rule 17.4 provides that the court in its discretion may require disclosure to defense

counsel of other relevant material and information upon a showing of materiality to the

preparation of the defense. Rule 17.4 has no bearing on the instant case because, again, the

State did not possess any HBO footage to disclose.

Because Harmon has failed to cite any convincing authority to establish that the

prosecution had an affirmative duty to obtain the video footage, his discovery-violation

argument fails. We find no reversible error on this point.

Harmon’s second point on appeal is a challenge to the court’s denial of his motion for

a continuance. On the day of the trial, Harmon moved for a continuance “based on the

inability to obtain the video and names and contact information of the HBO personnel.”

Harmon argues that a continuance to obtain this information and evidence was necessary “for

both substantive defense and for possible relitigation of the motion to suppress.”

Upon the request of a party, the circuit court may grant a continuance, but the movant

has the burden of showing good cause. Barrow,

,

.

The circuit court’s decision to grant a continuance will be reversed only if an appellant can

demonstrate an abuse of discretion. Barnes v. State,

,

(2001). A circuit

8 court should consider the following factors in deciding a continuance motion: (1) the diligence

of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring

the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit,

stating not only what facts the witness would prove, but also that the appellant believes them

to be true. Miller v. State,

,

(1997).

Here, the circuit court did not abuse its discretion in refusing to grant Harmon’s request

for a continuance. First, a six-month continuance had already been granted by the court to

give the defense time to obtain the video. Also, as the State points out, Harmon did not

subpoena HBO despite having received the court order allowing the defense to do so a month

before trial. Harmon did not request the continuance until the day of trial, there was no

evidence of the probable effect the film would have had on the outcome of the case, and there

was little likelihood that a continuance would result in the successful acquisition of the film

given the fact that neither the prosecution nor the defense had been able to obtain it after

significant efforts to do so. Furthermore, Harmon did not file an affidavit stating what the

evidence would demonstrate if he were able to obtain the video because no one knew what

the video might show. The court’s denial of his request for a continuance did not constitute

an abuse of discretion.

Harmon also claims that the circuit court erred in excluding testimony related to the

HBO film crew and the video based on its finding that such evidence would be confusing to

a jury. Harmon contends that “the presence of undisclosed persons at the scene of the alleged

offense and the fact that the events were recorded but the recording was not provided is

something which any defendant would use to show reasonable doubt.” Although relevant,

9 evidence may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue

delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403; Smith

v. State,

,

(2003). A circuit court’s ruling on relevancy

and matters pertaining to the admissibility of evidence are left to the sound discretion of the

circuit court and will not be reversed absent an abuse of that discretion. O’Neal,

,

.

An abuse of discretion is a high threshold that does not simply require error in the

circuit court’s decision, but requires that the circuit court acted improvidently, thoughtlessly,

or without due consideration.

Moreover, an appellate court will not reverse a circuit court’s

evidentiary ruling absent a showing of prejudice.

The court ruled that testimony regarding HBO film footage that had not been located

or produced would likely confuse the jury. We see no abuse of discretion in the court’s ruling

that testimony regarding video evidence that may not even exist could confuse the jury. None

of the parties claim to know the location or contents of the video, and Harmon cites no

authority to support his argument that he should have been allowed to discuss its absence at

trial. Exclusion of trial testimony regarding the lack of video footage was not an abuse of

discretion.

Harmon also alleges that the circuit court erred in both denying his proffered AMI

instruction on trafficking and granting the prosecution’s request to instruct the jury using a

nonmodel instruction. A circuit court’s decision whether to give a jury instruction will not be

reversed unless it constitutes an abuse of discretion. Vidos v. State,

, 239

(2006). A party is entitled to a jury instruction when it is a correct statement

of the law and when there is some basis in the evidence to support giving the instruction.

Nonmodel jury instructions should be given only when the court finds that the model

instructions do not accurately state the law or do not contain a necessary instruction. Bond v.

State,

,

(2008). Finally, a circuit court’s refusal to give

an instruction is not reversible error unless its omission infects the entire trial such that the

conviction violates due process. Hickman v. State,

,

(2008).

The jury instruction in question relates to the charge of trafficking methamphetamine

pursuant to Arkansas Code Annotated section 5-64-440, which provides that a person engages

in trafficking a controlled substance if he or she possesses, possesses with the purpose to

deliver, delivers, or manufactures a controlled substance—in this case methamphetamine—

by aggregate weight, including an adulterant or diluent, of a specified amount—here, in two

hundred grams.

(Repl. 2016).

The prosecution requested a non-AMI instruction on the trafficking charge. The circuit

court permitted the use of the non-AMI instruction. Harmon proffered AMI instruction

64.440 and objected to the State’s request for a non-AMI instruction. The State’s proposed

non-AMI instruction, which was allowed by the court and read to the jury, used the AMI

instruction but added additional information to the AMI instruction. Specifically, it added six

factors that the jury could use to determine whether Harmon had “purpose to deliver.”

11 The non-AMI instruction that was given to the jury reads as follows. The portions

underlined are the parts of the instruction that were added in a deviation from the model

instruction:

Rodney Harmon is charged with the offense of trafficking methamphetamine. To sustain this charge, the State must prove beyond a reasonable doubt; first, that Rodney Harmon possessed or possessed with the purpose to deliver more than 200 grams by aggregate weight including an adulterant or dilutant of methamphetamine; and, second, that he did so knowingly or purposefully.

Purpose to deliver may be shown by evidence that you find beyond a reasonable doubt proves Rodney Harmon’s purpose to deliver methamphetamine. The evidence which you may consider along with all the facts and circumstances of the case include any of the following factors:

• Defendant possessed the means to weigh, separate, or package methamphetamine; or

• Defendant possessed a record indicating a drug related transaction; or

• The methamphetamine was separated and packaged in a manner to facilitate delivery; or

• Defendant possessed a firearm that was in his immediate physical control at the time of the possession of the methamphetamine; or

• The Defendant possessed at least two other controlled substances in any amount; or

• Other evidence that contributes to prove the Defendant’s purpose was to deliver methamphetamine.

And these definitions are applicable:

Knowingly, a person acts knowingly with respect to his conduct or attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exists. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Possession, there are two kinds of possession, actual and constructive. Actual possession of a thing is a direct physical control over it. Constructive possession exists when a person, although not in actual possession of that thing, has a right to control it 12 and intends to do so. If two or more persons share actual or constructive possession of a thing, either or both may be found to be in possession.

Purposely, a person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

The State argued that the model instruction, which does not contain the factors listed

above, is insufficient. Harmon did not dispute that the factors listed above are appropriate for

the jury to consider but argued that the model instruction should not be modified because it

is an accurate statement of the law. Harmon also noted that the jury would be instructed on

possession of methamphetamine with purpose to deliver as a lesser-included offense to

trafficking and that the factors listed in the State’s proposed non-AMI instruction would be

available to the jury in the separate AMI instruction for that charge.

The court found that “purpose to deliver does not mean . . . a different thing in

trafficking than it does in purpose to deliver” and granted the State’s request to give the jury

a non-AMI jury instruction that contained factors not found in the model instruction.

The Arkansas Supreme Court has repeatedly held that a non-AMI instruction should

be given only when the AMI instruction does not accurately state the law or does not contain

an instruction on the subject. Ventress v. State,

,

(1990); Henderson

v. State,

,

(1985). Since there is an AMI instruction on the elements

necessary to prove trafficking—AMI 2d 64.44—it was improper to give a non-AMI

instruction if the AMI instruction is an accurate statement of the law.

The State does not argue that the AMI instruction is an inaccurate statement of the

law. The model instruction clearly tracks the plain language of the trafficking statute.

. The statute itself does not contain the factors that the State added into 13 its non-AMI instruction. Instead, the State argues that it was proper to import additional

language from AMI 2d 64.420 (possession with intent to deliver) to make the trafficking

instruction clearer and easier for the jury to understand and apply.

While we will not reverse a circuit court’s decision to give or reject a jury instruction

unless the court abused its discretion, e.g., Wallace v. State,

, at 7,

, our legal standard for when a court may use a non-AMI instruction leaves very little

room for discretion. In Pokatilov v. State,

, at 7–8,

, 857, for

example, the Arkansas Supreme Court held that “a non-model instruction is only to be given

when the model instruction does not correctly state the law or where there is no model rule

on the subject.” Our case law demonstrates that a circuit court is obligated to give the model

instruction if it is an accurate statement of law. Here there is no argument that the model

instruction was inaccurate; the State and the court simply believed that adding additional

factors to the model instruction made it clearer for the jury to understand. These additional

factors are not found in the trafficking statute and were imported from the model instruction

for a different offense (possession with intent to deliver). Finally, the “Note on Use” provided

for AMI 2d 64.440 specifically states:

Possession with the purpose to deliver was added to trafficking in Act 529 of 2013, section 4, and the legislation did not include the factors to be considered. Compare section 5 of Act 529 which lists factors with respect to

and

. The committee has followed Act 529 and has not included the factors in this instruction.

It is clear, therefore, that the factors were intentionally omitted from the model instruction,

and the court had no discretion to deviate from the model instruction to add those factors in

this case. We therefore reverse and remand Harmon’s trafficking conviction. The circuit court

14 abused its discretion because it violated our clearly established legal standard dictating when a

circuit court may deviate from a model instruction.

We reject the argument that the court’s error in modifying the model instruction was

harmless. The State argues that because Harmon agreed that the factors were legally applicable

to the trafficking offense (despite not being found in the trafficking statute), he essentially

waived any argument as to prejudice. However, our standard is quite different:

In cases involving a trial court’s giving of an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice. Such a requirement is often an impossible burden, and the requirement of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. Said another way, prejudice will be presumed from the giving of an erroneous instruction unless some additional factor makes it clear that the erroneous instruction was harmless. If this were an attempt to make a finding as to whether appellant was prejudiced by the improper instruction, we would only engage in speculation, applying our view of what a reasonable jury would have done.

Napier v. State,

,

(2001) (internal citations omitted).

In Napier, we made this standard even more concrete, holding that “[a]n appellee, however,

may still demonstrate that the giving of an erroneous instruction was harmless, where the jury

demonstrably was not misled because the jury rejected the theory of the erroneous instruction,

and where the erroneous instruction was obviously cured by other instructions.”

(citing

Cates v. Brown,

,

(1983); Moore v. State,

,

(1972)). The court in Napier relied on Cates, in which the Arkansas Supreme Court found

no prejudice from an erroneous jury instruction because the jury had found for the appellant

on the issue covered by that instruction.1 The appellant could not show prejudice because he

1In Cates, the court stated,

15 had prevailed on the very issue about which the erroneous instruction was given. That is not

the case here; Harmon was convicted of trafficking using the erroneous instruction. Here, we

cannot say that “the jury demonstrably was not misled because the jury rejected the theory of

the erroneous instruction, and . . . the erroneous instruction was obviously cured by other

instructions.” Napier,

,

. We reverse and remand

Harmon’s trafficking conviction.

Harmon’s final point on appeal is a challenge to the court’s admission, over Harmon’s

objection, during the penalty phase of the trial, of recordings of an informant, Shannon

Daniels, allegedly making controlled drug buys from Harmon. The only argument that

Harmon preserved below regarding this evidence was his claim that it was more prejudicial

than probative and therefore should have been excluded under Arkansas Rule of Evidence

403. The circuit court overruled the objection and also denied Harmon’s motion for a

continuance to allow more time to locate Daniels. Harmon contends that this court should

modify the sentence to the statutory minimum due to the prejudice that occurred by allowing

the recorded drug buys to be admitted during the penalty phase. He cites no case law or

authority for his position.

Billy Cates next contends that the trial court committed reversible error by the giving of an instruction on the standard of care for a contractor. A.M.I. Civil 2d 1204. There is no basis in the record for the instruction and it should not have been given. However, the verdict rendered the error harmless since the jury found against appellees on the issue involved in the instruction. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. Bussell v. Mo. Pac. R.R. Co.,

,

(1964).

Cates,

,

. 16 Although evidence is relevant, it may nonetheless be excluded if “its probative value is

substantially outweighed by the danger of unfair prejudice.” Ark. R. Evid. 403. Further, “[t]he

fact that evidence is prejudicial to a party is not, in itself, reason to exclude evidence. The

danger of unfair prejudice must substantially outweigh the probative value of the evidence.”

Branstetter v. State,

,

(2001). Lastly, bare conclusory

allegations regarding prejudice are not sufficient to carry an appellant’s burden on appeal. See

Diemer v. State,

,

(2006).

Here, Harmon’s argument is not well developed and appears to be a conclusory

allegation of prejudice from the admission of relevant evidence. We find no reversible error

on this point.

Affirmed in part; reversed and remanded in part.

GRUBER, C.J., and HARRISON, HIXSON, and BROWN, JJ., agree.

VIRDEN, KLAPPENBACH, SWITZER, and MURPHY, JJ., concur in part and dissent in

part.

BART F. VIRDEN, Judge, concurring in part and dissenting in part. The

dissent in this case is limited to the issue of the jury instruction. In all other aspects, I agree

with the majority opinion. I would affirm the circuit court’s decision to give a non-AMI

jury instruction on the trafficking charge.

A circuit court’s decision whether to give an instruction will not be reversed unless

the court abused its discretion. Vidos v. State,

,

(2006). A party

is entitled to a jury instruction when it is a correct statement of the law and when there is

some basis in the evidence to support giving the instruction.

Nonmodel instructions are

17 to be given only when the circuit court finds that an AMI instruction either does not

accurately state the law or AMI does not contain an instruction on the needed subject. Bond

v. State,

,

(2008); Wallace v. State,

, at 7,

.

Harmon was convicted of one count of trafficking methamphetamine, a violation of

, which provides that it is unlawful for a person to engage in

trafficking a controlled substance. A person engages in trafficking a controlled substance if

he or she possesses, possesses with the purpose to deliver, delivers, or manufactures a

controlled substance—in this case methamphetamine—by aggregate weight, including an

adulterant or diluent; here, two hundred grams.

The model jury instruction tracks the

statute but does not include the following six factors that the jury must consider in

determining whether Harmon acted with the purpose to deliver:

(1) The person possesses the means to weigh, separate, or package a counterfeit substance;

(2) The person possesses a record indicating a drug-related transaction;

(3) The counterfeit substance is separated and packaged in a manner to facilitate delivery;

(4) The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of the counterfeit substance;

(5) The person possesses at least two (2) other controlled substances or counterfeit substances in any amount; or

(6) Other relevant and admissible evidence that contributes to the proof that a person’s purpose was to deliver a counterfeit substance.

Both the State and Harmon agreed that the jury would consider the six factors and

that the instruction was necessary; however, Harmon asserts that the nonmodel instruction 18 should not have been given because the jury was able to refer to a lesser-included instruction

and find the definition of “purpose with intent” there. Though it was possible that the jury

could have flipped back and forth through the instructions to locate the six factors, I find

no abuse of discretion in the court’s decision that the six factors—a necessary instruction—

should be included with the model instruction for trafficking.

Moreover, I do not agree that Pokatilov v. State,

,

,

supports the majority’s reversal on this point. In Pokatilov, our supreme court affirmed the

circuit court’s use of discretion in refusing to give a non-AMI instruction, stating that “just

because a proffered instruction may be a correct statement of the law, that does not mean a

circuit court must give the instruction to the jury.”

at 7–8,

(citing

Walley v. State,

, 112 S.W3d 349 (2003)). The perspective here is critical: in

Pokatilov, our supreme court affirmed the circuit court’s decision to present the AMI jury

instruction. Pokatilov sets forth that a circuit court is not required to give a nonmodel

instruction if it is a correct statement of the law and that a nonmodel instruction is only to

be given when the model instruction does not correctly state the law or when there is no

model rule on the subject. Here, the model rule lacked the necessary instruction on the

subject.

I would afford the circuit court in the instant case the same exercise of discretion and

affirm the circuit court’s decision when it, in its discretion, found the non-AMI instruction

to contain a necessary instruction.

SWITZER and MURPHY, JJ., join.

19 N. MARK KLAPPENBACH, Judge, concurring in part and dissenting in part.

I write separately to dissent from the majority’s opinion only on the issue of the jury

instruction. I would affirm the methamphetamine-trafficking conviction because, even

assuming there was error in giving the nonmodel jury instruction, any error was harmless.

The model jury instruction was modified slightly but only to define the factors the

jury could consider in deciding whether the State had proved “purpose to deliver.” The

factors are legally accurate, a fact not disputed by appellant. It is unfathomable how the jury

could be confused or misled by being provided legally applicable factors it could consider.

Those same legally accurate factors were repeated in the jury instruction that was given to

the jury on the lesser-included offense to methamphetamine trafficking.

As explained in Napier v. State,

,

(2001),

“prejudice will be presumed from the giving of an erroneous instruction unless some

additional factor makes it clear that the erroneous instruction was harmless,” which can be

shown when the jury demonstrably was not misled.

Assuming the jury instruction was

“erroneous” because it was more amplified than the model jury instruction, I agree with

the State’s contention that any presumed error was harmless. Appellant fails to even respond

to the harmless-error analysis. I would affirm the methamphetamine-trafficking conviction

because the circuit court’s giving of the modified jury instruction was harmless.

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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