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ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
John S. Merlau                                        Gregory F. Zoeller
Brent Eaton                                           Attorney General of Indiana
New Palestine, Indiana
                                                      Michael Gene Worden
                                                      Brian L. Reitz
                                                      Deputy Attorneys General

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                                                                                      FILED
                                               In the                               Oct 30 2012, 9:37 am



                        Indiana Supreme Court                                              CLERK
                                                                                         of the supreme court,
                                                                                         court of appeals and
                                                                                                tax court




                                    No. 30S04-1206-CR-372

LISA J. KANE,
                                                              Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                              Appellee (Plaintiff below).


                Appeal from the Hancock Superior Court, No. 30D01-1012-FD-219
                              The Honorable Terry K. Snow, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 30A04-1109-CR-488



                                        October 30, 2012

Massa, Justice.


       Lisa Kane appeals her conviction for receiving stolen property, arguing that the trial court
improperly instructed the jury on the mental state required to convict her. We agree, reverse her
conviction, and remand her case for retrial.
                                Facts and Procedural History


       In 2010, Sam Rifner and Lisa J. Kane had been in a relationship for about fifteen years.
They had one child together, and they had shared an apartment for some time. When Sam lost
his job in the fall of 2010, the couple could no longer afford their apartment, and Sam moved
into the home of his parents, Shirley and Stephen Rifner. Kane moved in with her own parents
and occasionally visited Sam at his parents’ home.


       At some point, Shirley noticed that some of her personal property—specifically, video
game equipment—was missing from her home. She also noticed that some of her husband’s
tools were missing. When she asked Sam about the missing items, he admitted he had taken
them and pawned them. Shirley then went into Sam’s room and found several pawn tickets.
Two of these tickets appeared to bear Kane’s signature.


       Shirley reported the thefts to the Hancock County Sheriff’s Department, which conducted
an investigation in conjunction with the Indianapolis Metropolitan Police Department. They
determined that the thumbprint of the person who had pawned the item, located on the back of
one of the pawn tickets, matched Kane’s thumbprint.


       The State charged Kane with receiving stolen property, a class D felony, and later
amended that charge to add a habitual offender enhancement. Kane was tried before a jury, and
at the close of the evidence, both parties tendered proposed jury instructions. Among the State’s
proposed instructions was No. 8 regarding accomplice liability: “You are instructed that when
two or more persons combine to commit a crime, each is responsible for the acts of his
confederate(s) committed in furtherance of the common design, the act of one being the act of
all.” App. at 33.


       Kane’s attorney objected to that proposed instruction. The trial judge asked Kane’s
attorney to “expand” upon his objection, and a colloquy ensued. Tr. at 152–58. Kane’s attorney
explained that there was no evidence that “Ms. Kane or Mr. Rifner planned this out or talked


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about it in advance . . . .” Tr. at 152–53. He also expressed concern that the jury could convict
Kane based on Sam’s actions “without necessarily proving that she had knowledge”—meaning,
presumably, knowledge that the goods were stolen. Tr. at 153. The prosecuting attorney argued
that “acting in concert with another is part and parcel of the circumstantial evidence that can be
used to infer knowledge.” Tr. at 153. The trial court noted that the instruction at issue was not a
pattern instruction and requested that the prosecuting attorney provide some statute or case law
in support of it. The prosecuting attorney cited Harrison v. State, 269 Ind. 677, 382 N.E.2d 920
(1978), and the trial judge assigned an intern to look up that case. After a little more discussion,
Kane’s attorney renewed his objection, and the trial court took the matter under advisement.


        The proposed instruction, as modified to mirror the instruction used in Harrison, was
ultimately included in the trial court’s final instructions as No. 12: “Where two or more persons
combine to commit a crime, each is criminally responsible for the acts of his or her confederates
committed in furtherance of common design, the act of each being the act of all.” App. at 38; see
also Harrison, 269 Ind. at 687, 382 N.E.2d at 926 (finding no fault with an abandonment
instruction that read, in part: “When two or more persons combine to commit a crime, each is
criminally responsible for the acts of his confederates committed in furtherance of the common
design, the act of each being the act of all.”).


        The jury convicted Kane of the charged D felony receiving stolen property.             Kane
admitted to being a habitual offender. She was sentenced to three years for receiving stolen
property with an enhancement of two years (one suspended) for her habitual offender status.


        Kane appealed her conviction on two grounds: (1) that the evidence was insufficient to
support the conviction and (2) that the trial court abused its discretion both by failing to give one
of her proposed jury instructions and by giving Final Instruction No. 12. A divided panel of the
Court of Appeals affirmed Kane’s conviction in an unpublished opinion. Kane v. State, No.
30A04-1109-CR-488, 2012 WL 1478788, slip op. at 2 (Ind. Ct. App. April 27, 2012). The
majority found that the evidence, though circumstantial, was nonetheless sufficient to support the
inference that Kane knew the property was stolen. Id. at 5. As to Kane’s proffered jury


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instruction, the court found her appeal waived for failure to develop a cogent argument, but
noted that even if it were not, it would fail “because each element of the tendered instruction was
covered by other instructions given.” Id. at 7. As to Final Instruction No. 12, the court agreed it
was “deficient,” but found that Kane had waived her challenge to the error by failing to raise that
specific argument at trial or on appeal. Id. at 9.


       Judge Barnes dissented, believing Kane had preserved the instructional issue for appeal.
Id. at 10 (Barnes, J., dissenting). He described Final Instruction No. 12 as “outdated and
woefully inadequate.” Id. at 10–11. He noted that it omitted the mental state requirement for
accomplice liability and that we had found a similar instruction to be deficient in Small v. State,
531 N.E.2d 498 (Ind. 1988). Kane, slip op. at 11–12. He also stated that he did not believe the
error could be harmless because the case “was a very ‘close call.’” Id. at 12.


       Kane petitioned for transfer to this Court on the basis of the State’s accomplice liability
instruction only. We granted transfer, thereby vacating the opinion below. Kane v. State, 970
N.E.2d 155 (Ind. 2012) (table); Ind. Appellate Rule 58(A).




                                        Standard of Review


       When reviewing a trial court’s decision to give or refuse to give a party’s tendered
instruction, we consider “(1) whether the tendered instruction correctly states the law; (2)
whether there was evidence presented at trial to support giving the instruction; and, (3) whether
the substance of the instruction was covered by other instructions that were given.” Mayes v.
State, 744 N.E.2d 390, 394 (Ind. 2001). The trial court has broad discretion as to how to instruct
the jury, and we generally review that discretion only for abuse. Id. Where, however, as here,
the appellant’s challenge to the instruction is based on the first of our three considerations—an
argument that the instruction was an incorrect statement of the law—we review the trial court’s
interpretation of that law de novo. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 523
(Ind. 2012).


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                          Kane Has Not Waived Her Claim of Instructional Error


       As a threshold matter, the State contends that Kane’s claim of instructional error is
waived because she did not raise the particular grounds for her objection at trial or on appeal.
We disagree.


       It is well-established in both common law and rule that a party wishing to preserve
instructional error for appeal must identify the specific grounds for objection at the time of trial.
See, e.g., McDowell v. State, 885 N.E.2d 1260, 1262 (Ind. 2008); Childers v. State, 719 N.E.2d
1227, 1232 (Ind. 1999); Ind. Crim. Rule 8(B) (“No error with respect to the giving of instructions
shall be available as a cause for new trial or on appeal, except upon the specific objections made
as above required.”); Ind. Trial Rule 51(C) (“No party may claim as error the giving of an
instruction unless he objects thereto . . . stating distinctly the matter to which he objects and the
grounds of his objection.”). We require such a specific and timely objection to ensure that the
trial court has every opportunity to avoid error “that might otherwise require reversal and result
in a miscarriage of justice and a waste of time and resources.” McDowell, 885 N.E.2d at 1262
(citing Godby v. State, 736 N.E.2d 252, 255 (Ind. 2000)).


       We find McDowell particularly instructive here. In that case, the defendant was on trial
for voluntary manslaughter, and her attorney objected to one of the State’s proposed jury
instructions on the ground that it was “unduly prejudicial.”        Id. at 1262.    On appeal, the
defendant argued the instruction was an incorrect statement of the law because it impermissibly
relieved the State of its burden to prove the element of intent beyond a reasonable doubt. The
State contended that the defendant had waived her objection by not raising it at trial. We agreed
with the defendant, noting that although the defendant’s objection might “normally lack the
necessary specificity to preserve the error for appeal,” where, as here, “we have the benefit of an
ensuing colloquy between the trial court and counsel, which informs us that the trial judge gave
specific consideration to whether the proposed instruction was a correct statement of law,” the
error is preserved. Id.




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           Here, as in McDowell, Kane’s attorney initially made a general objection to Final
Instruction No. 12. He subsequently argued that there was insufficient evidence to support
giving it, and he specifically expressed concern that it could cause the jury to convict Kane even
if the State failed to prove the requisite mens rea—knowingly or intentionally—for the charged
crime. What is more, during this colloquy, the trial court noted that the instruction was not a
pattern instruction, sent an intern to look up the case the prosecutor cited in support of it, and
said he would “take at look” at it. Most significantly, the trial judge did not simply adopt the
State’s proposed instruction; rather, he changed it to mirror language that, in his estimation, had
received judicial approval in Harrison. We find this is enough to show that the trial judge
considered whether the proposed instruction was an incorrect statement of the law and thus to
preserve for appeal an objection to the instruction on that ground.




                  Jury Instruction No. 12 Was an Incorrect Statement of the Law


           Indiana’s accomplice liability statute states that “[a] person who knowingly or
intentionally aids, induces, or causes another person to commit an offense commits that
offense . . . .” Ind. Code § 35-41-2-4 (emphasis added). Accordingly, the pattern jury instruction
on accomplice liability tracks the language of the statute and includes a prominent mention of the
required mental state: “A person who, knowingly or intentionally [aids] [induces] [causes]
another person to commit an offense commits that offense.” 1 Ind. Pattern Jury Instructions
(Criminal) No. 2.11 (2011) (emphasis added; bracketed text in original). Final Instruction No.
12, in contrast, omits altogether the key phrase “knowingly or intentionally”—indeed, it says
nothing about mens rea at all. Instead, it states that “each is criminally responsible for the acts of
his or her confederates committed in furtherance of common design, the act of each being the act
of all.”


           In prior cases, we have weighed jury instructions that were unclear as to the relevant
mental state and found them wanting. See Small, 531 N.E.2d at 499. Final Instruction No. 12
does not include a mental state at all; rather, it seems to impose strict liability on Kane for the


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unlawful acts of Sam, whether she knew about them or not. That is not the law in Indiana, and
so we hold that the trial court erred by giving the jury Final Instruction No. 12.


                                   The Error Was Not Harmless


        Having found the challenged instruction to be erroneous, we presume the error affected
the verdict, and we will reverse the defendant’s conviction “unless the verdict would have been
the same under a proper instruction.” Rosales, 963 N.E.2d at 525; see also Dill v. State, 741
N.E.2d 1230, 1233 (Ind. 2001) (finding an instruction harmless error only when the conviction is
“clearly sustained by the evidence and the jury could not properly have found otherwise.”); Ind.
Appellate Rule 66(A) (stating that an error at trial may be reversed on appeal unless “its probable
impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.”).


        Here, the State concedes there is no direct evidence that Kane knew the property was
stolen when she pawned it, but argues the circumstantial evidence was sufficient for the jury to
have found the knowledge element of the crime proven beyond a reasonable doubt.                See
Appellee’s Br. at 7 (“Because there are reasonable inferences from the evidence that permit the
jury to find that Defendant had knowledge of the stolen nature of the property that she pawned,
she is guilty of receiving stolen property.”). The State presented uncontroverted evidence at trial
to show Kane and Sam were in an intimate relationship, they had financial difficulties, Kane
relied upon Sam for transportation, they spent time together in the home from which the property
was taken, and Sam had previously stolen property and pawned it.


        We agree with Judge Barnes that this “evidence of Kane’s knowledge that she was
helping Sam ‘fence’ stolen property is far from overwhelming.” Kane, slip op. at 11 (Barnes, J.,
dissenting). It may be enough to clear the lower bar of sufficiency, but we believe it is not




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enough to overcome the presumption of prejudice that applies here. Thus, we cannot say the
verdict would have been the same if the jury had been properly instructed as to the knowledge
requirement of the offense, and we find the error was not harmless.1




                                             Conclusion


       Accordingly, we reverse Kane’s conviction and remand this case for retrial.


Dickson, C.J., Rucker and David, J.J., concur.




1
  We believe the Court of Appeals correctly decided Kane’s claim that the evidence was insufficient to
support her conviction, and so we summarily affirm that portion of its opinion. Ind. Appellate Rule
58(A)(2). Finally, we have decided her case on another ground, and so we need not—and do not—
consider Kane’s argument regarding the trial judge’s refusal to give her proffered jury instruction. See
Horseman v. Keller, 841 N.E.2d 164, 167 n.1 (Ind. 2006) (declining to address an issue when resolving
the case on other grounds).



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