MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Dec 22 2016, 9:10 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                          Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ariel Lasos,                                            December 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1604-CR-772
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G01-1409-F5-42715



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016    Page 1 of 7
                                          Case Summary
[1]   Ariel Lasos (“Lasos”) was convicted of Battery Resulting in Serious Bodily

      Injury, as a Level 5 felony,1 after a jury trial. He now appeals.


[2]   We affirm.



                                                    Issue
[3]   Lasos raises one issue for our review, which we restate as whether it was

      fundamental error for the trial court to issue certain jury instructions related to

      the jury’s deliberative process.



                                   Facts and Procedural History
[4]   On September 6, 2014, Lasos was part of a group of individuals fighting at a bar

      in Indianapolis. The fight escalated, and Lasos retrieved a baseball bat from his

      car. Lasos then used the bat to strike the back of another man’s head. That

      individual, Victor Castro, had been attempting to avoid the crowd of people

      fighting. Castro immediately lost consciousness after Lasos struck him.

      Lasos’s conduct was witnessed by officers from the Lawrence Police

      Department who had been called to respond to the scene.




      1
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 2 of 7
[5]   On September 8, 2014, Lasos was charged with Battery Resulting in Serious

      Bodily Injury, as a Level 5 felony; Battery with a Deadly Weapon, as a Level 5

      felony;2 and Resisting Law Enforcement, as a Level 6 felony.3


[6]   On March 2, 2016, a jury trial was conducted, at the conclusion of which the

      jury found Lasos guilty of Battery Resulting in Serious Injury and not guilty on

      the other two counts. On March 18, 2016, the trial court sentenced Lasos to

      four years imprisonment, with two years suspended to probation.


[7]   This appeal ensued.



                                Discussion and Decision
[8]   Lasos challenges the propriety of certain jury instructions that the trial court

      issued. Our standard of review with respect to jury instructions generally has

      been set forth by the Indiana Supreme Court:

                 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. 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. Jury
                 instructions are to be considered as a whole and in reference to
                 each other; error in a particular instruction will not result in




      2
          I.C. § 35-42-2-1.
      3
          I.C. § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 3 of 7
               reversal unless the entire jury charge misleads the jury as to the
               law in the case.


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

       omitted).


[9]    Lasos acknowledges that he did not object to any of the challenged jury

       instructions at trial, but argues that the trial court’s instructions were so

       deficient as to rise to the level of fundamental error. Cf. id. In such cases, we

       will reverse only if an error “is a substantial blatant violation of basic principles

       and where, if not corrected it would deny a defendant fundamental due

       process.” Id. (citations and quotations omitted). The fundamental error rule is

       a narrow exception to the requirement for a contemporaneous objection to an

       erroneous instruction, and affords relief “only in egregious circumstances that

       made a fair trial impossible.” Id. (citations and quotations omitted).


[10]   Here, Lasos challenges part or all of three jury instructions. Instruction 10

       includes within it a statement to the jurors that “[y]ou must decide the facts

       from your memory of the testimony and exhibits admitted for your

       consideration.” (App’x at 67.) Instruction 34 states, in its entirety, “The

       transcript of the trial will not be available during your deliberations. Base your

       verdict on the evidence as you remember it.” (App’x at 94.) Instruction 32

       states in part, “I often am not allowed to answer your questions, except by re-

       reading all of the jury instructions.” (App’x at 91-92.) Lasos contends that

       these three statements are contrary to Indiana Code section 34-36-1-6, Indiana

       Jury Rule 28, and interpretive case law.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 4 of 7
[11]   Indiana Code section 34-36-1-6 provides:


               If, after the jury retires for deliberation:


               (1) there is a disagreement among the juror as to any part of the
               testimony; or


               (2) the jury desires to be informed as to any point of law arising
               in the case;


               The jury may request the officer to conduct them into court,
               where the information required shall be given in the presence of,
               or after notice to, the parties or the attorneys representing the
               parties.


       Jury Rule 28 provides:


               If the jury advises the court that it has reached an impasse in its
               deliberations, the court may, but only in the presence of counsel,
               and, in a criminal case the parties, inquire of the jurors to
               determine whether and how the court and counsel can assist
               them in their deliberative process. After receiving the jurors’
               response, if any, the court, after consultation with counsel, may
               direct that further proceedings occur as appropriate.


       Lasos argues that the jury instructions cannot be reconciled with the statute and

       the rule, because the instructions “fail to inform the jury of its right to re-hear

       testimony in the case of disagreement (or even without a disagreement)” and

       “affirmatively suggest that listening to testimony is impossible … because the

       jurors must decide the case solely on ‘the evidence as [jurors] remember it’ or

       ‘from [their] memory’” because no transcript would be available and the court

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 5 of 7
       often is unable to answer juror questions. (Appellant’s Br. at 9.) Lasos argues

       that these instructions are incorrect, and this amounted to a violation of the

       very right to trial by jury.


[12]   We disagree. With respect to questions from the jury generally, Lasos

       challenges a single sentence in Instruction 32 related to what answers the trial

       court stated it might or might not be able to provide. In its full context,

       Instruction 32 provides: “Any question for me must be in writing and given to

       the bailiff. I often am not allowed to answer your questions, except by re-

       reading all of the jury instructions. Because I have given you those instructions,

       you may be able to answer your questions by reviewing them.” (App’x at 91-

       92.) In context, the meaning of the sentence Lasos challenges is plain: it

       instructs the jury to consider whether it can answer its own questions, thereby

       facilitating the process of the jury’s deliberation. Lasos’s brief does not specify

       how the sentence—in or out of its context—is incorrect. We thus find no error

       with respect to Instruction 32.


[13]   Instructions 10 and 34 relate to the requirement that the jurors use the exhibits

       and their memory of the testimony to decide the case, and informs the jury that

       a transcript of the testimony will not be available. Lasos argues that the

       instructions are erroneous because they do not inform jurors of their “right” to

       obtain playback of a recording of the testimony from the trial. (Appellant’s Br.

       at 9.) Lasos directs us to no enunciation of such a right, but nevertheless insists

       that it exists. Neither Section 34-36-1-6 nor Jury Rule 28 require that courts

       inform juries of such a right, and neither of them by their terms require that the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 6 of 7
       court replay audio recordings of testimony. Rather, this Court has held that a

       trial court did not abuse its discretion when a criminal defendant claimed that

       he was prejudiced when a trial court replayed a recording of the victim’s

       testimony. Parks v. State, 921 N.E.2d 826, 831-32 (Ind. Ct. App. 2010), trans.

       denied. We decline to conclude that Parks gave rise to a right for the jury to hear

       playback of testimony—let alone that it requires trial courts to instruct juries of

       such a right. We accordingly find no error, much less fundamental error, in

       Instructions 10 and 34.



                                               Conclusion
[14]   The trial court did not err in its instruction of the jury.


[15]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016   Page 7 of 7
