Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Megan Shipley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Toya K. Radford,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 9, 2018

Court of Appeals Case No.

49A02-1710-CR-2273

Appeal from the Marion Superior

The Honorable Alicia A. Gooden, 

Judge

The Honorable Jennifer L. Haley, 

Commissioner

Trial Court Cause No.

49G21-1606-F2-21068

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2273 | April 9, 2018 Page 2 of 12

Statement of the Case

[1] Toya Radford appeals his conviction for dealing in cocaine, as a Level 2 felony, 

following a jury trial. He presents two issues for our review:

1. Whether the State presented sufficient evidence to support 

his conviction.

2. Whether the trial court committed fundamental error 

when it instructed the jury.

[2] We affirm.

Facts and Procedural History

[3] On May 26, 2016, Indianapolis Metropolitan Police Department (“IMPD”) 

Detective Dennis Wilkes and other IMPD officers executed a search warrant 

for 2919 East North Ralston in Indianapolis. When the officers arrived, they 

saw a young man, later identified as Radford’s fifteen-year-old stepson, inside a 

window at the front of the house, and they asked him to let them inside. He 

refused, and the officers forced their way into the house. Inside, officers found 

two occupants, Radford’s stepson and an unidentified adult male. Shortly after 

making their entry, officers apprehended Radford and another man, who were

in the backyard.

[4] Detective Wilkes read aloud the search warrant and Miranda rights for Radford 

and the other occupants. Radford stated that he lived at the residence with his 

brother and that Radford’s stepson stayed there on occasion. Officers then 

began to search the one-story, three-bedroom residence. In one bedroom that 
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contained several personal items belonging to Radford, officers found a gun 

under the mattress and a magazine for the gun. In a kitchen cabinet, officers 

found a cooler containing thirteen grams of cocaine, a digital scale, baggies, and 

cash. After the officers had discovered the cocaine and other items in the 

kitchen but continued to search the residence, Detective Wilkes and Officer 

Craig McElfresh heard Radford say, “You all have found all I got.” Tr. Vol. II 

at 106. Then, when officers searched Radford’s person, they found $700 in cash 

in his pocket.

[5] The State charged Radford with dealing in cocaine, as a Level 2 felony, and 

possession of cocaine, as a Level 3 felony. During a phone call with his 

girlfriend while he was in jail, Radford stated, “I didn’t really have s*** though 

. . . . It ain’t really that bad as you probably was thinking it is. Probably like a 

C, C felony.” State’s Ex. 29. The State dismissed the possession charge prior 

to trial. A jury found Radford guilty of dealing in cocaine, as a Level 2 felony, 

and the trial court entered judgment and sentence accordingly. This appeal 

ensued.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[6] Radford contends that the State presented insufficient evidence to support his 

conviction. In reviewing the sufficiency of the evidence, we consider only the 

evidence and reasonable inferences most favorable to the conviction, neither 

reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59 
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N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable 

fact-finder could find the defendant guilty. Id.

[7] Radford’s sole contention on appeal is that the State did not present evidence 

that he constructively possessed the cocaine. Evidence of constructive 

possession is sufficient if the State shows that the defendant had both the 

capability and the intent to maintain dominion and control over the 

contraband. Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). Where, as 

here, a person’s control over the premises where contraband is found is nonexclusive, intent to maintain dominion and control may be inferred from 

additional circumstances that indicate that the person knew of the presence of 

the contraband. Id. at 574. Additional circumstances may include: (1) 

incriminating statements by the defendant; (2) attempted flight or furtive 

gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the 

drugs or weapons; (5) drugs or weapons in plain view; and (6) location of the 

drugs or weapons in close proximity to items owned by the defendant. Id.

[8] Here, the evidence shows that, after officers had searched the kitchen and found 

the cocaine in the kitchen cabinet, Radford told officers, “You all have found 

all I got.” Tr. Vol. II at 106. And, while he was in jail, Radford made 

statements during a phone call with his girlfriend acknowledging possession of 

enough cocaine to support a Class C felony. Those are incriminating 

statements supporting a finding of constructive possession. In addition, the 

State presented evidence of a drug manufacturing setting, namely, a large 

amount of cocaine and cash, a digital scale, and baggies, which is another 
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factor showing constructive possession. See Jones v. State, 807 N.E.2d 58, 65 

(Ind. Ct. App. 2004), trans. denied. Radford’s contentions on appeal amount to 

a request that we reweigh the evidence, which we cannot do. The State 

presented sufficient evidence to support his conviction for dealing in cocaine.

Issue Two: Jury Instructions

[9] Radford contends that the trial court committed fundamental error when it 

instructed the jury. In particular, Radford maintains that the “jury instructions 

misled the jury by repeatedly suggesting the wrong mens rea and by failing to 

inform the jury of a statutory limitation on how the State could prove intent.” 

Appellant’s Br. at 13. We cannot agree.

[10] Our Supreme Court set out the applicable standard of review as follows:

Because instructing the jury is a matter within the sound 

discretion of the trial court, we will reverse a trial court’s decision 

to tender or reject a jury instruction only if there is an abuse of 

that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.

2013). We determine whether the instruction states the law 

correctly, whether it is supported by record evidence, and 

whether its substance is covered by other instructions. Id. at 345-

46. “Jury instructions are to be considered as a whole and in 

reference to each other; error in a particular instruction will not 

result in reversal unless the entire jury charge misleads the jury as 

to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344 

(Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196 

(Ind. 1996)).

Where, as here, the defendant failed to preserve an alleged 

instructional defect, the objection is waived, and reversal is 

warranted only in instances of fundamental error. Wright v. State, 
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730 N.E.2d 713, 716 (Ind. 2000). “Error is fundamental if it is ‘a 

substantial blatant violation of basic principles’ and where, if not

corrected, it would deny a defendant fundamental due process.” 

Id. (quoting Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998)). 

This exception to the general rule requiring a contemporaneous 

objection is narrow, providing relief only in “egregious 

circumstances” that made a fair trial impossible. Halliburton v. 

State, 1 N.E.3d 670, 678 (Ind. 2013).

Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).

[11] The State charged Radford with dealing in cocaine, as a Level 2 felony, under 

Indiana Code Section 35-48-4-1 (2015), which provided in relevant part that

(a) A person who:

* * *

(2) possesses, with intent to:

(A) manufacture;

(B) finance the manufacture of;

(C) deliver; or

(D) finance the delivery of;

cocaine or a narcotic drug, pure or adulterated, 

classified in schedule I or II;

commits dealing in cocaine or a narcotic drug, a Level 5 felony, 

except as provided in subsections (b) through (e).
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(b) A person may be convicted of an offense under subsection 

(a)(2) only if there is evidence in addition to the weight of the 

drug that the person intended to manufacture, finance the 

manufacture of, deliver, or finance the delivery of the drug.

* * *

(e) The offense is a Level 2 felony if:

(1) the amount of the drug involved is at least ten (10) 

grams; or

(2) the amount of the drug involved is at least five (5) 

but less than ten (10) grams and an enhancing 

circumstance applies.

[12] Radford contends that three jury instructions were given in error: Preliminary 

Instruction No. 4, and Final Instructions Nos. 2 and 3, which read as follows:

Preliminary Instruction No. 4:

In this case, the State of Indiana has charged the Defendant with 

Count I: Dealing in Cocaine. The charge reads as follows:

COUNT I

On or about May 26, 2016, Toya K. Radford, did knowingly or 

intentionally possess with the intent to deliver cocaine, pure or 

adulterated, weighing at least 10 grams.

The Defendant has entered a plea of not guilty.

Upon the issues thus joined, the burden rests upon the State of 

Indiana to prove to each of you, beyond a reasonable doubt, 

every essential element of the charge contained in the 

information. The information, which has been filed against the 
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Defendant, is merely the formal method of charging him and the 

charge.

* * *

Final Instruction No. 2

COUNT I

The Defendant is charged in Count I with the offense of Dealing 

in Cocaine, which is defined by statute as follows:

A person who knowingly possesses with the intent to deliver 

cocaine, pure or adulterated, in an amount at least 10 grams or 

more commits Dealing in Cocaine.

To convict the Defendant of Count I, the State must have proved 

each of the following beyond a reasonable doubt:

1. On or about May 26, 2016

2. The Defendant, Toya K. Radford,

3. Knowingly

[4]. Possessed

[5]. With the intent to deliver

[6]. Cocaine, pure or adulterated,

[7]. Said cocaine having a weight of 10 grams or more

If the State fails to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant, Toya K. 

Radford, not guilty of Dealing in Cocaine.
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* * *

Final Instruction No. 3

A person engages in conduct “knowingly” if, when he engages in 

this conduct, he is aware of a high probability that he is doing so.

Appellant’s App. Vol. II at 71, 83-84.

[13] Radford maintains that Preliminary Instruction No. 4 and Final Instruction No. 

2 “confused and misl[ed]” the jury on the mens rea required to convict him. 

Appellant’s Br. at 20. And he maintains that Final Instruction No. 3, which 

defined “knowingly,” further confused the jury on mens rea. 

[14] In particular, Radford contends that the trial court did not instruct the jury that 

the State had to prove that he had the specific intent to deliver cocaine. 

Radford also contends that Final Instruction No. 2 “made no mention of the 

statutory limitation on how the State can prove intent” which “failed to inform 

the jury of what evidence the State was required to present in order to obtain a 

conviction.” Id. at 22. Radford asserts that, “[b]ecause of these errors, the 

instructions as a whole misstated the law and misled the jury.” Id. at 14. And 

he states that “the errors rise to the level of fundamental error because they are 

relevant to the central issue in the case—whether Radford constructively 

possessed the cocaine with the intent to deliver.” Id.

[15] In support of his contentions, Radford states that these mens rea issues “are 

similar to those in the Spradlin[ v. State, 569 N.E.2d 948 (Ind. 1991)] line of 

attempted murder cases.” Id. at 18. Under the Spradlin rule, a jury “should not 
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be instructed that a ‘knowing’ mens rea is sufficient to establish guilt of 

attempted murder, and our supreme court has found fundamental error and 

reversed attempted murder convictions where the jury was instructed that it 

could convict of attempted murder based on a ‘knowing’ mens rea.” Clay v. 

State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002). “However, error in an attempted 

murder instruction does not rise to the level of fundamental error where either 

1) the instructions as a whole sufficiently inform the jury of the requirement of 

intent to kill; and/or 2) the intent of the perpetrator was not a central issue at 

trial.” Id. 

[16] In McKinley v. State, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015), trans. denied, this 

court addressed the same argument that Radford makes, namely, that a Spradlin

error had occurred where the term “knowingly” was included in a jury 

instruction on the elements of possession of cocaine with intent to deliver. The 

defendant in McKinley, like Radford, had not objected to the alleged erroneous 

jury instructions and argued fundamental error. We held in relevant part as 

follows:

assuming “knowingly” should not be included in a jury 

instruction on the elements of possession with intent to deliver,[]

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. The State emphasized 

the way the cocaine was packaged “ready to sell,” the twenty-
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seven $20 bills on McKinley’s person, and the absence of 

paraphernalia or any other signs of personal use. Tr. at 180-84. 

Defense counsel claimed McKinley was a user, not a dealer. 

Defense counsel argued McKinley had just received his income 

tax return and fell victim to the “Sam’s Club effect”: “You go 

and buy in bulk [and] you get it cheaper.” Id. at 188.

Under of the facts of this case, intent to deliver was the central 

issue at trial. 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. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App.

1995), trans. denied. 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.

Id. at 31.

[17] Radford attempts to distinguish the facts of this case from those in McKinley. In 

particular, he claims that, where McKinley had actual possession of cocaine, 

the State had to prove that Radford constructively possessed the cocaine found in 

his kitchen, which he shared with other residents. But we are not persuaded 

that that distinction warrants a different conclusion on the issue of fundamental 

error. Here, again, the State presented sufficient evidence that Radford 

possessed the cocaine. The trial court instructed the jury that the State had to 

prove that Radford had intent to deliver the cocaine. And the State presented 

evidence that the amount of cocaine, along with the digital scale, baggies, gun, 

and large amount of cash proved Radford’s intent to deal.
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[18] The State argues that because the evidence “overwhelmingly proved an intent 

to deliver . . . the injection of a ‘knowingly or intentionally’ mens rea element 

into the instructions is harmless and does not amount to fundamental error.” 

Appellee’s Br. at 18. We agree. 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. 

Indeed, Radford’s defense at trial was that he did not possess the cocaine, so his 

intent to deliver was not a central issue at trial. We hold that the trial court did 

not commit fundamental error when it instructed the jury.

[19] Finally, Radford contends that the trial court committed fundamental error 

when it did not “inform the jury that it could not rely exclusively on the weight 

of the cocaine to infer Radford’s intent.” Appellant’s Br. at 24. While that is 

an element of the charged offense, there is no evidence that the jury was 

instructed, or that the State suggested, that the jury could rely exclusively on the 

weight of the cocaine to infer Radford’s intent. Indeed, the State presented 

testimony that the amount of cocaine, along with the digital scale, baggies, gun, 

and large amount of cash all together proved Radford’s intent to deal. We 

cannot say that the trial court committed fundamental error when it instructed 

the jury.

[20] Affirmed.

Robb, J., and Altice, J., concur.