MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Feb 09 2017, 8:10 am
court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Virginia C. Bryant,                                      February 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A03-1605-CR-1151
        v.                                               Appeal from the
                                                         DeKalb Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kevin P. Wallace, Judge
                                                         Trial Court Cause No.
                                                         17D01-1504-F3-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017    Page 1 of 10
[1]   Virginia C. Bryant (“Bryant”) was convicted after a jury trial of arson 1 as a

      Level 3 felony and sentenced to four years executed. She appeals raising the

      following restated issue for our review: whether the trial court committed

      fundamental error in making certain statements to the jury during voir dire and

      in instructing the jury.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On January 22, 2015, Fannie Mast (“Mast”), who lived across the street from

      the building that Bryant used for her antiques business and in which Bryant

      lived, was working outside her house in Waterloo, DeKalb County, Indiana,

      when she saw smoke coming out of the roof area of the building belonging to

      Bryant. As the smoke was coming out of the building, Mast observed Bryant

      leaving the building “real fast like.” Tr. at 156. Mast saw Bryant drive away in

      a van “in a hurry.” Id. Mast had lived across the street from Bryant for about

      two years, and Mast believed that Bryant drove off faster than she usually did.

      Id. As Bryant left, the smoke was coming out along the eaves of the building in

      two different places. Mast saw flames coming from the area where the antiques

      shop was located. Mast called the fire department.




      1
          See Ind. Code § 35-43-1-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 2 of 10
[4]   Volunteer firefighter Michael Long (“Long”) was the first firefighter to respond

      to the scene. While at his house, which was four blocks away, Long observed

      the smoke in the sky from the Bryant fire. Once at the scene, firefighters tried

      to enter the building, but after concluding that there were no occupants in the

      building, the firefighters decided to treat the fire defensively by fighting it from

      the outside. While doing this, the wind shifted, and before Long could put his

      mask on, he suffered smoke inhalation. Long’s chest pains from the smoke

      inhalation got worse, and he was transported to the hospital, after the

      emergency medical team noticed an irregularity in his heartbeat, and had to

      spend several hours in the emergency room.


[5]   Mike Vogely (“Vogely”), who worked for the State Fire Marshal’s Office,

      investigated the fire to determine its origin and cause. Vogely entered the

      building and went into the kitchen area, where he “picked up a hint of an

      odor,” which he believed smelled like gasoline. Id. at 225. He found a red

      gasoline can in a storage closet and a blue kerosene can that smelled of gasoline

      near some refrigerators. Based on the evidence that there were multiple areas of

      origin, but no communication2 between these points of origin, Vogely

      determined that the evidence indicated that the fire had been set intentionally.

      Id. at 232.




      2
       Vogely defined “communication” as the line of travel that a fire takes or the connection between two points
      of origin. Tr. at 225-26.

      Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017         Page 3 of 10
[6]   The contents of the building included the inventory of the antiques shop. This

      inventory was scheduled to be auctioned pursuant to a court order as a result of

      the dissolution of the marriage between Bryant and her husband. The

      inventory was to be auctioned online over the course of twenty to twenty-five

      auctions that were estimated to bring in about $3,000-$5,000 per auction.


[7]   During the investigation of the fire by the law enforcement, DeKalb County

      Sheriff’s Detective Benjamin Rice (“Detective Rice”) learned that, on February

      16, 2015, Bryant was stranded on the side of the road with her van in a ditch.

      When Detective Rice met Bryant, she was attempting to get the van out of the

      ditch. Detective Rice told Bryant that he knew she was the owner of the

      building and wanted to talk to her about the fire. Bryant responded that her

      “eye doctor told her not to talk to the police,” which Detective Rice found to be

      a bizarre response. Id. at 289. Detective Rice offered to call a tow truck for

      Bryant and transport her to a location to get warm after being outside in the

      cold, but she declined. About thirty to thirty-five minutes later, Bryant was

      finally able to drive her van out of the ditch, and she drove away. On February

      23, 2015, Bryant went to the sheriff’s department and spoke with Detective

      Rice. On March 11, 2015, Bryant called the auctioneer to inform him that the

      building had burned and that he should check on his insurance. Id. at 272. She

      also told the auctioneer that she hoped her husband had insurance on his

      property within the building because she was not required to do so under the

      dissolution decree. Id.




      Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 4 of 10
[8]    On April 30, 2015, the State charged Bryant with arson as a Level 3 felony. A

       jury trial was held on March 23-24, 2016. During voir dire, the trial court made

       a statement informing the potential jurors of the State’s allegations against

       Bryant. Id. at 52. Bryant did not object to this statement. Id. After a jury was

       chosen and before the testimony began, the trial court gave preliminary

       instructions to the jury. As part of Preliminary Instruction 4 (“Instruction 4”),

       the trial court read the charging information. Id. at 129-30. Bryant did not

       object to this instruction. Id. At the conclusion of the trial, the jury found

       Bryant guilty as charged, and she was sentenced to four years executed. Bryant

       now appeals.


                                      Discussion and Decision
[9]    Bryant contends that the trial court erred both in statements made during voir

       dire and in instructing the jury. Trial courts have broad discretionary power in

       regulating the form and substance of voir dire. Gibson v. State, 43 N.E.3d 231,

       237 (Ind. 2015), cert. denied, 137 S. Ct. 54 (2016). The manner of instructing a

       jury is left to the sound discretion of the trial court. Albores v. State, 987 N.E.2d

       98, 99 (Ind. Ct. App. 2013), trans. denied. We review the trial court’s decision

       only for an abuse of that discretion. Id.


[10]   Generally, a contemporaneous objection is required to preserve an issue for

       appeal. McKinley v. State, 45 N.E.3d 25, 28 (Ind. Ct. App. 2015), trans. denied.

       However, Bryant did not object to the statements made during voir dire or to

       Instruction 4. “Consequently, we ‘will only reverse the trial court if the trial


       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 5 of 10
       court committed error that was fundamental.’” Rosales v. State, 23 N.E.3d 8, 11

       (Ind. 2015) (quoting Hopkins v. State, 759 N.E.2d 633, 638 (Ind. 2001)). The

       fundamental error exception is extremely narrow and applies only when an

       error constitutes a blatant violation of basic principles of due process. McKinley,

       45 N.E.3d at 28. “The error must be ‘so prejudicial to the rights of a defendant

       a fair trial is rendered impossible.’” Id. (quoting White v. State, 846 N.E.2d

       1026, 1033 (Ind. Ct. App. 2006), trans. denied). When determining whether an

       incorrect jury instruction amounts to fundamental error, we do not look only to

       the erroneous instruction in isolation, but in the context of all relevant

       information given to the jury, including closing argument and other

       instructions. Id. There is no due process violation where all of the information,

       considered as a whole, does not mislead the jury as to a correct understanding

       of the law. Id. at 28-29.


[11]   Bryant initially argues that the trial court committed fundamental error during

       voir dire when it made certain statements regarding the nature of the case to the

       potential jurors. She asserts that these statements did not just inform the

       potential jurors of the general nature of the case; instead, she alleges that the

       trial court stated several elements of the crime as established facts. Because the

       facts contained in the statements made by the trial court were facts that needed

       to be proven beyond a reasonable doubt, Bryant claims that the trial court’s

       comments deprived her of due process and invaded the province of the jury.


[12]   During voir dire, the trial court made the following statements to the

       prospective jurors:

       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 6 of 10
               On January 22, 2015, an antique store with attached residence,
               located in the 100 block of South Wayne Street in Waterloo,
               Indiana, burned to the ground. The State of Indiana accuses
               [Bryant], the Defendant, of knowingly or intentionally starting
               the fire. She denies that allegation. The State believes that
               [Bryant] owned the building that was destroyed. Inside the
               building were antiques with an appraised value of over $100,000.
               According to an order, by Judge Monte Brown in a dissolution of
               marriage case, the antiques in the building were to be auctioned
               with one-half of the proceeds going to [Bryant] and one-half of
               the proceeds going to . . . her ex-husband.


       Tr. at 52. Bryant argues that these statements by the trial court stated as

       established facts several elements of the crime with which she was charged. We

       disagree.


[13]   These statements by the trial court merely informed the prospective jurors of

       what the State believed had occurred and what the State would need to prove in

       order to convict Bryant of arson as a Level 3 felony. Although Bryant argues

       that the trial court stated elements of the crime as established facts, it is clear

       from the language used that the trial court was only stating what the State

       believed were the facts of the case. We do not find that these statements

       amounted to fundamental error and rendered a fair trial impossible.


[14]   Bryant next argues that the trial court committed fundamental error when it

       gave Instruction 4. She contends that language in Instruction 4 that stated that

       Detective Rice “verified” the charges deprived her of the due process of law and

       her right to be presumed innocent. Appellant’s Br. at 12. Bryant asserts that



       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 7 of 10
       such language coming from the trial court caused her to be unable to have a fair

       trial because the language essentially told the jury that she was guilty.


[15]   In its preliminary instructions to the jury, the trial court read Instruction 4,

       which stated:


               This is a criminal case brought by the State of Indiana against
               Virginia C. Bryant. The case was commenced with the filing of
               an Information charging the Defendant with Arson, a Level 3
               Felony.


               Omitting the formal parts, the charge reads as follows:


               “Detective Ben Rice ‘states and verifies’ that on or about
               Thursday, January 22, 2015, in DeKalb County, Indiana,
               Virginia C. Bryant, by means of fire, explosive or destructive
               device, knowingly or intentionally damaged property of another
               person, Cedric Bryant, without his or her consent if the pecuniary
               loss is at least five thousand dollars ($5000.00). Additionally, the
               offense resulted in bodily injury to any person other than a
               defendant, who was firefighter Michael Long, and the injury was
               smoke inhalation. All of which is contrary to the form of the
               statute in such cases made and provided and against the peace of
               dignity of the State of Indiana.”


       Id. at 129-30; Appellant’s App. at 53. Bryant contends that the “states and

       verifies” language invaded the province of the jury and deprived her of a fair

       trial because it essentially informed the jury she was guilty. We disagree.


[16]   Instruction 4 was a repetition of the charging information. In addition to

       Instruction 4, the jury was also instructed that it should not form or express any


       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 8 of 10
       conclusion or judgment about the outcome of the case until all of the evidence

       had been presented. Tr. at 128. The trial court informed the jury that the case

       was commenced with the filing of an information and the charge is “the formal

       method of bringing the Defendant to trial.” Id. at 130. Additionally, the jury

       was told that “[t]he filing of a charge or the Defendant’s arrest is not to be

       considered . . . as any evidence of guilt” and that the Defendant was presumed

       to be innocent. Id. The trial court also instructed the jury that the State must

       prove each element of the crime beyond a reasonable doubt to overcome the

       presumption of innocence. Id. at 131. The jury was further instructed to

       consider the instructions as a whole and not to “single out any certain sentence

       or any individual point or instruction and ignore the others.” Id. at 129. We,

       therefore, conclude that Instruction 4 did not invade the province of the jury

       and that the challenged language did not mislead the jury so as to render a fair

       trial impossible.3


[17]   Neither the statements made by the trial court during voir dire nor Instruction 4

       invaded the province of the jury and made a fair trial impossible. We conclude

       that the trial court did not commit fundamental error.




       3
         We note, however, that a recent case from this court disapproved of similar language in a preliminary
       instruction. In Lynn v. State, 60 N.E.3d 1135 (Ind. Ct. App. 2016), trans. denied, the appellant claimed that
       language that stated that the affiant in the charging information “does hereby swear or affirm under the
       penalties of perjury” invaded the province of the jury and deprived him of due process. Id. at 1139.
       However, although this court stated that such affirmation language had “no place in jury instructions and
       that the best practice is for trial courts to redact such language,” it concluded, as we do here, that the
       appellant had failed to demonstrate fundamental error due to the other instructions given to the jury. Id.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017             Page 9 of 10
[18]   Affirmed.


[19]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A03-1605-CR-1151 | February 9, 2017   Page 10 of 10
