                                                                               FILED
                                                                          Jun 26 2019, 10:07 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                      Curtis T. Hill, Jr.
      Marion County Public Defender                              Attorney General of Indiana
      Indianapolis, Indiana                                      Sierra A. Murray
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Roberto Cruz Rivera,                                       June 26, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2862
              v.                                                 Appeal from the
                                                                 Marion Superior Court
      State of Indiana,                                          The Honorable
      Appellee-Plaintiff                                         Helen Marchal, Judge
                                                                 Trial Court Cause No.
                                                                 49G15-1708-F6-30973



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Under Indiana Code section 35-37-2-4(a), a trial court is required to give the

      jury an admonishment limiting juror discussions of the case (1) “in the

      preliminary instruction,” (2) “before separating for meals,” and (3) “at the end

      Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019                            Page 1 of 7
         of the day.” In this case, the trial court read the preliminary instructions—

         including the required admonishment—and then immediately excused the jury

         for lunch without repeating the admonishment. We must decide whether the

         giving of the admonishment as part of the preliminary instructions was

         sufficient to satisfy not only the “in the preliminary instruction” requirement of

         the statute but also the “before separating for meals” requirement. Because the

         jury was sent to lunch immediately after hearing the preliminary instructions,

         we hold that it was.



                                Facts and Procedural History
[2]   In August 2017, the State charged Rivera with Level 6 felony auto theft and Class

      A misdemeanor theft. A jury trial was held on June 13, 2018. The judge swore in

      the jurors at 12:09 p.m. and then read sixteen preliminary instructions.

      Preliminary Instruction 1, which tracks Indiana Pattern Jury Instructions—

      Criminal 1.0100 (4th ed. 2019) (entitled “Duty of Jurors”), provided, in relevant

      part:


                 You are permitted to discuss the evidence among yourselves in
                 the jury room during recesses from trial but only when all jurors
                 and alternates are present. You must not talk or communicate
                 about this case with anyone else. You should keep an open
                 mind. You should not form or express any conclusion or
                 judgment about the outcome of the case until the Court submits
                 the case to you for your deliberations.


         Appellant’s App. Vol. II p. 82. The judge also gave Preliminary Instruction 3,

         which directed the jury “to consider all the instructions together,” id. at 85, and
         Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019           Page 2 of 7
         Preliminary Instruction 12, which instructed the jury on the credibility of

         witnesses and the manner of weighing testimony, id. at 94.


[3]   At 12:23 p.m., immediately after reading the preliminary instructions, the judge

      excused the jury for lunch. Tr. p. 23. The judge did not repeat the admonishment

      limiting juror discussions of the case, and Rivera did not ask for it to be repeated.

      After the jury returned from lunch, counsel gave opening statements and presented

      evidence. Counsel then reviewed and approved final instructions, which were read

      to the jury. The judge did not instruct the jury on the credibility of witnesses and

      the manner of weighing testimony; however, Final Instruction 1 specifically

      directed the jury “to consider all of the jury instructions (both preliminary and

      final) together.” Appellant’s App. Vol. II p. 101. The jury found Rivera guilty of

      auto theft but not guilty of theft.


[4]   Rivera now appeals.



                                     Discussion and Decision
[5]   Rivera contends that the trial court should have (1) repeated its admonishment

      limiting juror discussions of the case before excusing the jury for lunch and (2)

      included final instructions about the credibility of witnesses and the manner of

      weighing testimony. Rivera concedes that he waived both issues by failing to raise

      them in the trial court and that he must therefore establish fundamental error on

      appeal. The doctrine of fundamental error is an extremely narrow exception to the

      waiver rule that requires the defendant to show that the alleged error was so


         Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019          Page 3 of 7
      prejudicial to his rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d

      663, 668 (Ind. 2014), reh’g denied.


                                               I. Admonishment
[6]   Rivera first contends that the trial court committed fundamental error by not

      repeating its admonishment limiting juror discussions of the case before excusing

      the jury for lunch. Indiana Code section 35-37-2-4(a) provides:


                  The court shall admonish the jurors in the preliminary
                  instruction, before separating for meals, and at the end of the
                  day, that it is their duty not to converse among themselves or
                  permit others to converse with them on any subject connected
                  with the trial, or to form or express any opinion about the case
                  until the cause is finally submitted to them.


         Rivera “acknowledges the substance of the admonishment was covered in

         Preliminary Instruction 1,” which had been given less than fifteen minutes

         earlier, but asserts that the judge was required to give it a second time before

         excusing the jury for lunch.1 Appellant’s Br. p. 11. The State responds that

         because the jury was excused for lunch immediately after the preliminary



         1
           The admonishment envisioned by Section 35-37-2-4(a) was not technically “covered” by Preliminary
         Instruction 1. As noted above, Preliminary Instruction 1 was based on Indiana Criminal Pattern Jury
         Instruction 1.0100, which in turn is largely based on Indiana Jury Rule 20(a)(8). Jury Rule 20(a)(8) requires
         judges to give jurors a preliminary instruction that they are “permitted to discuss the evidence among
         themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment
         about the outcome of the case until deliberations commence.” (Emphasis added). Section 35-37-2-4(a), on
         the other hand, requires judges to admonish jurors “not to converse among themselves . . . on any subject
         connected with the trial . . . until the cause is finally submitted to them.” (Emphasis added). As such, it
         would have been impossible for the judge to give an admonishment that completely satisfied both Jury Rule
         20(a)(8) and Section 35-37-2-4(a). In any event, Rivera makes no issue of the conflict between the rule and
         the statute, and the tension between the two provisions does not affect our analysis in this case.

         Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019                                  Page 4 of 7
         instructions were given, the “in the preliminary instruction” and “before

         separating for meals” requirements of Section 35-37-2-4(a) were both satisfied

         by the single admonishment. In other words, the State contends that the judge

         effectively killed two birds with one stone.


[7]   We agree with the State. Section 35-37-2-4(a) requires judges to admonish juries at

      three different times: (1) during preliminary instructions; (2) before separating for

      meals; and (3) at the end of the day. Here, two of those times happened to

      coincide. After the jury was sworn in at 12:09 p.m., the judge read the preliminary

      instructions, one of which admonished the jury not to discuss the case unless all

      the jurors were together in the jury room, not to discuss the case with anyone else,

      and not to form or express any conclusions until the case was submitted to it. The

      judge excused the jury for lunch at 12:23 p.m. Although the judge was free to

      repeat the admonishment at that time, there was no need to do so given that she

      had just read the preliminary instructions to the jury. Where, as here, there are no

      intervening proceedings between the reading of the preliminary instructions and

      the jury being excused for lunch, trial courts are not required to give the

      admonishment required by Section 35-27-2-4(a) a second time. Accordingly, the

      judge did not err.


                           II. Incomplete Final Jury Instructions
[8]   Next, Rivera contends that the trial court should have given final instructions on

      the credibility of witnesses and the manner of weighing testimony. He is correct.

      Indiana Jury Rule 26(a) provides, in relevant part, that “the court shall read


         Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019          Page 5 of 7
      appropriate final instructions, which shall include at least the following: (1) the

      applicable burdens of proof; (2) the credibility of witnesses; and, (3) the manner of

      weighing the testimony received.” While the judge instructed the jury on the

      burden of proof during final instructions, see Appellant’s App. Vol. II p. 104, she

      did not instruct it on the credibility of witnesses and the manner of weighing

      testimony.


[9]   That said, because Rivera did not raise this issue below, he bears the heavy burden

      on appeal of establishing fundamental error. He has failed to do so. When

      considering whether an instructional error amounts to fundamental error, we

      consider the instructions as a whole and in reference to each other. Pattison v. State,

      54 N.E.3d 361, 365 (Ind. 2016). During preliminary instructions, the judge

      instructed the jury on the credibility of witnesses and the manner of weighing

      testimony. See Appellant’s App. Vol. II. p. 94 (Preliminary Instruction 12). In

      addition, Preliminary Instruction 3 directed the jury “to consider all the

      instructions together,” and Final Instruction 1 directed the jury “to consider all of

      the jury instructions (both preliminary and final) together.” Id. at 85, 101. The

      trial lasted one day, so in the same day that the jury decided the case, it heard

      instructions regarding the credibility of witnesses and the manner of weighing

      testimony. The trial court did not commit fundamental error.2




         2
           Rivera also argues that “[e]ven if this Court finds neither error standing alone warrants reversal in this case,
         the cumulative effect of the combined errors does.” Appellant’s Br. p. 13. However, because we find that the
         trial court did not err by not admonishing the jury a second time before lunch, there were not “combined
         errors,” so Rivera’s argument necessarily fails.

         Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019                                     Page 6 of 7
[10] Affirmed.




       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2862 | June 26, 2019   Page 7 of 7
