MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Sep 15 2015, 9:15 am
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                                   ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                         Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jimmie Hair, Jr.,                                        September 15, 2015
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         03A01-1502-CR-65
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1406-FA-2794



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 1 of 8
                                             Case Summary
[1]   Jimmie Hair appeals his convictions for Class A felony attempted murder and

      Class B felony unlawful possession of a firearm by a serious violent felon. We

      affirm.


                                                     Issue
[2]   Hair raises one issue, which we restate as whether the manner in which the jury

      was instructed resulted in fundamental error.


                                                     Facts
[3]   On June 13, 2014, Hair got in an argument over the phone with Ericxon

      Rosado. The argument escalated into a fist fight between the two men later that

      day. The fight ended when police arrived at the scene.


[4]   On June 16, 2014, Hair was walking in Columbus with a friend, Dai’von

      Corum, and saw Rosado sitting in the rear passenger seat of a car parked on the

      street. Hair, who had a key to his girlfriend’s car, used her gun, which she kept

      in her locked car, to shoot at Rosado three or four times. Rosado was shot in

      the neck, and the cellphone in his hand was also struck by a bullet. After the

      shooting, Hair gave the gun to his girlfriend and asked her to “get rid of it.” Tr.

      p. 106. Rosado survived the shooting.


[5]   On June 23, 2014, the State charged Hair with Class A felony attempted

      murder, Class B felony aggravated battery, and Class B felony unlawful

      possession of a firearm by a serious violent felon. Hair was tried by a jury and

      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 2 of 8
      found guilty as charged. The trial court entered convictions on the attempted

      murder and possession of a firearm charges. Hair now appeals.


                                                  Analysis
[6]   Hair argues that the jury was improperly instructed on specific intent as it

      related to the attempted murder charge, resulting in fundamental error. Hair

      did not object to the trial court’s final instructions and acknowledges that the

      issue is reviewed for fundamental error. The fundamental error exception to

      the doctrine of waiver is extremely narrow and applies only when an error

      constitutes a blatant violation of basic principles, the harm or potential for harm

      is substantial, and the resulting error denies the defendant fundamental due

      process. Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015).


[7]   In Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991), our supreme court held:


              that an instruction which purports to set forth the elements which
              must be proven in order to convict of the crime of attempted
              murder must inform the jury that the State must prove beyond a
              reasonable doubt that the defendant, with intent to kill the
              victim, engaged in conduct which was a substantial step toward
              such killing.


      The court reversed Spradlin’s attempted murder conviction because:


              Nowhere in the instructions is there a requirement that the State
              prove that the Spradlins, at the time that they struck, stabbed and
              cut the victims, intended to kill such victims. . . . Simply stated,
              in order to attempt to commit a crime, one must intend to
              commit that crime while taking a substantial step toward the
              commission of the crime.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 3 of 8
      Spradlin, 569 N.E.2d at 951.


[8]   Here, after the close of evidence, the parties reviewed the trial court’s final

      instructions and discussed each one.1 Regarding the instruction defining

      attempted murder, Hair’s attorney requested that the instruction be modified.

      He stated:

               [Defense Counsel]: . . . it says a person attempts to commit
                                  murder when acting with a specific intent to
                                  kill the person. I would say that then it
                                  should read he knowingly or intentionally
                                  engages in conduct that constitutes a
                                  substantial step toward killing that person a
                                  Class A felony. Reason being . . . this seems
                                  to be a combined instruction of both murder
                                  and then the attempt statute I think there,
                                  there’s well I know there’s specific intent to
                                  kill is knowingly or intentionally engaging in
                                  that conduct I think that’s what the statute
                                  reads I think that should be in there.


               [Prosecutor]:              Judge, I’m pulling up the statute to see what
                                          it says.


               [Defense Counsel]: Knowingly or intentionally kill somebody.




      1
        It is not entirely clear whose proposed jury instructions the parties were discussing. The State’s attempted
      murder instruction is included in Hair’s appendix, and it does not use the term “knowingly or intentionally.”
      Regardless, it is clear from the transcript that Hair requested the term “knowingly and intentionally” be
      added.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015            Page 4 of 8
        [Prosecutor:]             Yeah. So where are you wanting the
                                  knowing and intentionally?


        [Defense Counsel:] He knowingly or intentionally engages in
                           conduct.


                                             *****


        [Defense Counsel]: I agree with the numbering and then um
                           since he [sic] firing the handgun was the
                           knowingly or intentionally I would say did
                           knowingly or intentionally fire a handgun in
                           the direction of Ericxon Rosado.


Tr. pp. 269-70. Pursuant to this request, Final Instruction No. 18 provided in

part:

        A person attempts to commit murder when, acting with the
        specific intent to kill another person, he knowingly or
        intentionally engages in conduct that constitutes a substantial
        step toward killing that person.


        To convict the defendant, the State must have proved each of the
        following elements beyond a reasonable doubt:


        1.       The defendant


        2.       Acting with the specific intent to kill Ericxon Rosado.


        3.     Did knowing or intentionally fire a handgun in the
        direction of Ericxon Rosado.



Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 5 of 8
               4.    Which was conduct constituting a substantial step toward
               the commission of the intended crime of killing Ericxon Rosado.


       App. p. 132.


[9]    Hair contends this instruction made it difficult, if not impossible, for the jury to

       comprehend that, to convict Hair of attempted murder, it must find he acted

       with the specific intent to kill and that, to convict Hair of aggravated battery,

       the knowingly or intentionally standard applied. He claims this was

       compounded by the use of the “knowingly and intentionally” language in the

       instruction outlining the elements of attempted murder.


[10]   In response, the State asserts that, because Hair requested that the “knowingly

       or intentionally” language be added to the instruction, he invited any error

       associated with the instruction. The invited error doctrine is grounded in

       estoppel and forbids a party from taking advantage of an error that he or she

       commits, invites, or which is the natural consequence of his or her own neglect

       or misconduct. Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014), cert. denied.

       We agree with the State that, by asking that “knowingly or intentionally” be

       inserted into the instruction, Hair cannot now take advantage of that error by

       arguing that the jury was improperly instructed. See Williams v. State, 735

       N.E.2d 785, 789 (Ind. 2000) (referring to a challenge to an attempted murder

       instruction as “interesting,” but not available on appeal because the instruction

       was given as modified per the request of the defense).




       Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 6 of 8
[11]   Even if the modification requested by Hair were not invited error, he has not

       established fundamental error in the manner in which the jury was instructed.

       Our supreme has explained that Spradlin errors are not per se reversible,

       especially when the intent of the perpetrator was not a central issue at trial or if

       the wording of the instruction sufficiently suggested the requirement of intent to

       kill. Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind. 1999).


[12]   Here, Final Instruction No. 18 twice informed the jury that one must act with

       the specific intent to kill when he or she commits a substantial step toward the

       murder. In its final instructions, the trial court also read the charges, which

       alleged in part that Hair, “acting with the specific intent to kill Ericxon Rosado,

       did fire a handgun in the direction of Ericxon Rosado, which was conduct

       constituting a substantial step toward the commission of the intended crime of

       killing Ericxon Rosado.” App. p. 131. Further, the jury was instructed on the

       elements of the battery, and the terms “knowingly” and “intentionally” were

       defined for the jury. Thus, the instructions as a whole explained the specific

       intent requirement to the jury.2


[13]   Moreover, although Hair claims on appeal that his identity was not an issue, his

       theory of the case at trial was that Corum shot Rosado. See App. p. 292




       2
          Hair urges us not to consider the other final instructions in conducting our fundamental error analysis. He
       cites Beasley v. State, 643 N.E.2d 346, 348 (Ind. 1994), which acknowledged that jury instructions are
       evaluated as a whole unless “the trial court lists the elements of attempted murder and includes an incorrect
       mens rea[.]” Beasley is not applicable here where Hair also argues that the final instructions as a whole did
       not clearly distinguish between the mens rea for attempted murder and battery.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015            Page 7 of 8
       (arguing in closing “Corum is we believe who shot Ericxon”). Because intent

       was not at issue and the instructions as a whole repeatedly referenced the

       necessity of a specific intent to kill Ericxon, the manner in which the jury was

       instructed was not fundamental error.


                                                 Conclusion
[14]   Because Hair requested the language about which he now complains, he invited

       any error associated with the language. Even if it were not invited error, the

       wording of the instruction was not fundamental error. We affirm.


[15]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015   Page 8 of 8
