Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 1 of 7

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

Yvette M. LaPlante

Keating & LaPlante, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Deltrice Watkins,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 8, 2016

Court of Appeals Case No.

82A05-1603-CR-625

Appeal from the Vanderburgh 

Circuit Court

The Honorable Michael J. Cox

Trial Court Cause No.

82C01-1404-FA-453

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 2 of 7

[1] Deltrice Watkins appeals her convictions for two counts of dealing in 

methamphetamine as class A felonies, possession of a schedule III controlled 

substance as a class D felony, and possession of a schedule IV controlled 

substance as a class D felony. Watkins raises one issue which we revise and 

restate as whether the trial court abused its discretion in instructing the jury. 

We affirm.

Facts and Procedural History

[2] On March 11, 2014, Watkins sold methamphetamine to a confidential 

informant (“C.I.”). On April 9, 2014, the C.I. sent text messages to Watkins, 

asked her if she was coming, and offered to run the money out. Watkins 

arrived at the C.I.’s location, and the C.I. gave Watkins buy money. Watkins 

then left, met with a few people for about two minutes, and proceeded to 

Highway 41. 

[3] Vanderburgh County Sheriff’s Sergeant David Eades observed Watkins 

speeding and conducted a traffic stop on Highway 41. The police discovered 

methamphetamine, hydrocodone, alprazolam, and the buy money in Watkins’s 

vehicle. 

[4] On April 11, 2014, the State charged Watkins with Count I, dealing in 

methamphetamine as a class A felony; Count II, possession of a schedule III 

controlled substance as a class D felony; and Count III, possession of a 

schedule IV controlled substance as a class D felony. On November 11, 2014, 
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 3 of 7

the State charged Watkins with Count IV, dealing in methamphetamine as a 

class A felony. 

[5] On February 16 and 17, 2016, the court held a jury trial. During crossexamination, Sergeant Eades testified that Watkins claimed she had a bottle for 

Xanax and Lortabs and that he could look at her records and be able to see that 

she was prescribed those medications. Sergeant Eades also testified that to his 

knowledge no one checked to see if she had a prescription. After the State 

rested, the defense did not present any evidence. The court and the parties 

discussed jury instructions. Watkins’s counsel did not object to the instructions 

that were ultimately given to the jury and specifically stated that he agreed that 

instruction No. 3 was correct. Instruction No. 3 stated in part:

The crime of Possession of a Schedule III Controlled Substance, 

a Class D felony, which was in force at the time of the offense 

charged in Count 2, is defined by law as follows: A person who 

knowingly or intentionally possesses a controlled substance, pure 

or adulterated, classified in Schedule III, except marijuana or 

hashish, commits Possession of a Schedule III Controlled 

Substance, a Class D felony.

Before you may convict the Defendant of Count 2, the State must 

have proved each of the following beyond a reasonable doubt:

1. The Defendant

2. knowingly or intentionally

3. possessed
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 4 of 7

4. hydrocodone, pure or adulterated,

5. which the Court instructs you is classified by statute as a 

controlled substance in Schedule III.

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

reasonable doubt, you must find the Defendant not guilty of 

Possession of a Schedule III Controlled Substance, a Class D 

felony, as charged in Count 2.

Appellant’s Appendix II at 89. The court gave the jury this instruction and also 

instruction No. 4, which addressed Count III, possession of a schedule IV 

controlled substance as a class D felony, and stated that, before the jury could 

convict Watkins, the State must have proved that she knowingly or 

intentionally possessed alprazolam. 

[6] The jury found Watkins guilty as charged. The court sentenced Watkins to 

thirty years for Counts I and IV and 547 days for Counts II and III and ordered 

the sentences to be served concurrent with each other. 

Discussion

[7] The issue is whether the trial court abused its discretion in instructing the jury. 

Watkins cites Ind. Code § 35-48-4-7 which governs possession of a controlled 

substance and at the time of the offense provided in part that “[a] person who, 

without a valid prescription . . . knowingly or intentionally possesses a 

controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, 

except marijuana, hashish, salvia, or a synthetic cannabinoid, commits 
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 5 of 7

possession of a controlled substance, a Class D felony.”1

 She points to the 

testimony of Sergeant Eades in which he stated that he did not check to see 

whether she had a prescription for either Xanax or Lortabs. She contends that 

the omission of the defense of possession of a prescription is key because 

officers admitted that they did not make an attempt to determine whether she 

had a valid prescription and the State conceded that it may not have met a 

burden regarding the possession charges. She acknowledges that the defense 

bore the burden of having to prove the existence of a prescription, but argues 

that the court must instruct the jury on the validity of the defense once the 

defense has asserted the exception. 

[8] The State argues that Watkins waived review of this issue, that she waived her 

claim altogether because she did not allege fundamental error, and that she 

could not show fundamental error even if she alleged it. In reply, Watkins 

asserts that a failure to allege fundamental error does not result in waiver of her 

claim. 

[9] “The existence of a valid prescription for a controlled substance is a defense to 

the crime of possession.” Lundy v. State, 26 N.E.3d 656, 658 (Ind. Ct. App. 

2015) (citing Williams v. State, 959 N.E.2d 360, 363 (Ind. Ct. App. 2012)). The 

defendant bears the burden of proving this defense by a preponderance of the 

evidence. Id.

 

1 Subsequently amended by Pub. L. No. 158-2013, § 633 (eff. July 1, 2014).
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 6 of 7

[10] Ind. Trial Rule 51(C) provides in relevant part:

At the close of the evidence and before argument each party may 

file written requests that the court instruct the jury on the law as 

set forth in the requests. The court shall inform counsel of its 

proposed action upon the requests prior to their arguments to the 

jury. No party may claim as error the giving of an instruction 

unless he objects thereto before the jury retires to consider its 

verdict, stating distinctly the matter to which he objects and the 

grounds of his objection.

[11] The Indiana Supreme Court has “construed this requirement rather strictly, 

finding that its ‘purpose is not to create a procedural trap but to enhance trial 

fairness and to enable effective appellate review.’” Bowman v. State, 51 N.E.3d 

1174, 1179 (Ind. 2016) (quoting Scisney v. State, 701 N.E.2d 847, 848 (Ind. 

1998)). “Thus, at a minimum, ‘appellate review of a claim of error in the giving 

of a jury instruction requires a timely trial objection clearly identifying both the 

claimed objectionable matter and the grounds for the objection,’ though 

tendering a proposed alternative instruction is recommended.” Id. (quoting 

Scisney, 701 N.E.2d at 849).

[12] Watkins did not object to the instructions or tender a relevant jury instruction. 

Accordingly, we cannot say that Watkins preserved this issue for appeal. To 

the extent that Watkins asserts fundamental error in her reply brief, we observe 

that she did not do so in her initial brief and has waived the issue. See id. at 

1179-1180 (holding that the defendant failed to preserve an objection to 

instructions and “also failed to raise the issue of fundamental error in his initial 

appellate brief; we therefore find his claim of error with respect to the lack of an 
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-CR-625 | December 8, 2016 Page 7 of 7

instruction on jury unanimity entirely waived”) (citing Curtis v. State, 948 

N.E.2d 1143, 1148 (Ind. 2011) (“[P]arties may not raise an issue, such as 

fundamental error, for the first time in a reply brief.”)).

Conclusion

[13] For the foregoing reasons, we affirm Watkins’s convictions.

[14] Affirmed.

Robb, J., and Mathias, J., concur.