MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Oct 09 2015, 8:56 am
this Memorandum Decision shall not be
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Andrew M. Barker                                         Gregory F. Zoeller
Stephenie K. Gookins                                     Attorney General of Indiana
Campbell Kyle Proffitt, LLP
Noblesville, Indiana                                     Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Amy Ann Price,                                           October 9, 2015
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         29A04-1408-CR-405
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Daniel J. Pfleging
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         29D02-1401-FB-403



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015        Page 1 of 8
                                             Case Summary
[1]   Amy Price appeals her convictions for four counts of Class B felony burglary.

      We affirm.


                                                     Issues
[2]   Price raises two issues, which we restate as:


                       I.      whether the trial court properly admitted the
                               contents of Price’s purse into evidence; and

                       II.     whether the trial court properly instructed the
                               jury.

                                                     Facts
[3]   In December 2013 and January 2014, Price and her husband, Aaron Harlow,

      burglarized several homes in Hamilton County. Price drove their car while

      Harlow entered the residences and stole items. At the time, Price was on parole

      but had stopped checking in with her parole officer, and a warrant for her arrest

      was issued. She was also identified as a suspect in the burglaries.


[4]   Officers approached Price and Harlow while they were at a gas station and

      arrested them. Price’s purse was located in their vehicle, and it was also

      transported to the police station. Price was interviewed at the police station and

      was given Miranda warnings. Price admitted that she drove Harlow to five

      different houses, where Harlow would enter the houses and steal items, and she

      would pick Harlow and the items up. The officers then asked Price for

      permission to go through her purse, and Price said they were “more than

      welcome to go through it.” Tr. p. 849. The purse contained jewelry and other

      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015   Page 2 of 8
      items from a January 14, 2014 burglary and a pawn receipt dated January 14,

      2014, for a television taken in a January 13, 2014 burglary.


[5]   The State charged Price with five counts of Class B felony burglary and four

      counts of Class D felony theft. Price filed a motion to suppress her statement,

      the contents of her purse, and all evidence obtained after she was detained. The

      trial court denied the motion to suppress with respect to the statement but took

      the motion under advisement regarding the contents of Price’s purse. During

      the jury trial, Price again asked the trial court to suppress the contents of her

      purse, and the trial court denied the motion. The purse’s contents were

      admitted at trial over Price’s objection. Price also objected to a jury instruction.

      The trial court granted a directed verdict on one burglary charge and one theft

      charge, and the jury found Price guilty of four counts of Class B felony burglary

      and three counts of Class D felony theft. The trial court entered judgment of

      conviction on the burglary verdicts and sentenced Price to an aggregate

      sentence of thirty-two years with twelve years suspended to probation. Price

      now appeals.


                                                  Analysis
                                         I. Admission of Evidence

[6]   Price argues that the trial court erred by admitting the contents of her purse into

      evidence. The admission and exclusion of evidences rests within the sound

      discretion of the trial court, and we review the exclusion of evidence only for an

      abuse of discretion. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). “[N]ot

      every trial error requires reversal. Errors in the admission or exclusion of

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      evidence are to be disregarded as harmless error unless they affect the

      substantial rights of the party.” Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015).

      To determine whether an error in the introduction of evidence affected the

      appellant’s substantial rights, we must assess the probable impact of that

      evidence upon the jury. Id.


[7]   In Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975), our supreme court

      held that a person held in police custody is entitled to the presence and advice

      of counsel prior to consenting to a search and that the right, if waived, must be

      explicitly waived. Price argues that the search of her purse was unlawful

      because she was not given a Pirtle warning prior to the search. As a result, Price

      argues that the admission of the contents of her purse was improper. The State

      counters that the purse was properly searched incident to Price’s lawful arrest

      and that no Pirtle warning was necessary. We need not address the parties’

      arguments because any error in the admission of the purse’s contents was

      harmless error.


[8]   The contents of her purse, i.e., a pawn ticket for a television taken in one of the

      burglaries and jewelry and other items taken in another of the burglaries, were

      circumstantial evidence that she was involved in the burglaries. However,

      during her interview with the police, Price confessed to participating in the

      burglaries at issue here. Additionally, other circumstantial evidence linked

      Price to the burglaries. Price’s shoes matched prints that were found at the

      scene of two of the burglaries, a victim of one of the burglaries identified Price,

      and a victim’s business card was found in Price’s trash at her apartment. Even

      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015   Page 4 of 8
       if the trial court erred by admitting the contents of her purse, Price’s substantial

       rights were not affected given her confession and the other circumstantial

       evidence presented.


                                             II. Jury Instruction

[9]    Price argues that the trial court erred when it gave Final Instruction 9 to the

       jury. Instructing a jury is left to the sound discretion of the trial court, and we

       review its decision only for an abuse of discretion. Washington v. State, 997

       N.E.2d 342, 345 (Ind. 2013). We undertake a three-part analysis in

       determining whether a trial court has abused its discretion. Id. First, we

       determine whether the tendered instruction is a correct statement of the law. Id.

       Second, we examine the record to determine whether there was evidence

       present to support the tendered instruction. Id. at 345-46. Finally, we

       determine whether the substance of the tendered instruction was covered by

       another instruction or instructions. Id.


[10]   Final Instruction 9 instructed the jury, in part, that:

               A person who breaks and enters the building or structure of
               another person, with the intent to commit a felony in it, commits
               burglary, a class C felony. The offense is a class B felony if the
               building or structure is a dwelling.


               A person who knowingly or intentionally aids, induces, or causes
               another person to commit Burglary commits that offense, even if
               the other person has not been prosecuted for the offense of
               Burglary; has not been convicted of the offense of Burglary; or
               has been acquitted of Burglary.


       Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015   Page 5 of 8
               Count 1:


               Before you can convict the Defendant of Burglary as set out in
               Count 1, the State must have proved each of the following
               elements beyond a reasonable doubt:


               1. The Defendant, Amy Price;


               2. knowingly or intentionally;


               3. aided, induced or caused;


               4. Aaron Harlow to commit the offense of Burglary . . . .


               5. by transporting Aaron Harlow to and from the building or
               structure of John W. Cahill, Jr. and/or checking to see if the
               building or structure was occupied and/or delaying Mr. Cahill’s
               entry into the building or structure.


               If the State failed to prove each of the elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               burglary a class B felony as charged in Count I.


       App. pp. 143-44. The instruction used similar language to detail the remaining

       charges against Price.


[11]   Price argues that the language in paragraph 5 of Final Instruction 9

       unnecessarily emphasized specific facts and highlighted specific facts that

       misled the jury and implied an inference of guilt. Our supreme court has held

       that instructions that unnecessarily emphasize one particular evidentiary fact,

       witness, or phase of the case are disapproved. Ludy v. State, 784 N.E.2d 459,

       Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015   Page 6 of 8
       461 (Ind. 2003). In Dill v. State, 741 N.E.2d 1230, 1231 (Ind. 2001), our

       supreme court disapproved of an instruction telling the jury that it could

       consider the flight of a person after the commission of a crime, though not proof

       of guilt, as evidence of consciousness of guilt. The court first stated that the

       instruction was ambiguous and confusing for informing the jury that flight

       could be evidence of consciousness of guilt, but not proof of guilt itself. Dill,

       741 N.E.2d at 1232. Next, the court stated that trial courts should not give

       discrete instructions that highlight or emphasize one particular facet of the

       evidence. Id. Finally, the court stated that the instruction was misleading

       because it emphasized the possible inculpatory inferences to be derived from a

       defendant’s flight while omitting consideration of contrary, innocent reasons for

       fleeing. Id.


[12]   In Ludy, the instruction at issue provided: “A conviction may be based solely on

       the uncorroborated testimony of the alleged victim if such testimony establishes

       each element of any crime charged beyond a reasonable doubt.” Ludy, 784

       N.E.2d at 460. The court held that the instruction was erroneous because it

       unfairly focused the jury’s attention on and highlighted a single witness’s

       testimony, presented “a concept used in appellate review that is irrelevant to a

       jury’s function as fact-finder,” and “by using the technical term

       ‘uncorroborated,’ the instruction may mislead or confuse the jury.” Id. at 461.


[13]   Here, the trial court’s instruction was based on pattern jury instruction 2.11,

       which concerns aiding, inducing, or causing an offense. Pattern jury

       instructions have not been formally approved by the Indiana Supreme Court,

       Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-405 | October 9, 2015   Page 7 of 8
       and certain pattern instructions have even been held to not be a correct

       statement of the law. Harrison v. State, 32 N.E.3d 240, 252 (Ind. Ct. App. 2015),

       trans. denied. However, pattern jury instructions are given preferential

       treatment during litigation, and the preferred practice is to use the pattern

       instructions. Id.


[14]   Paragraph 5 of the pattern instruction directs the trial court to describe alleged

       offense or conduct, which the trial court did in this case.                 The challenged

       instruction merely set out the elements of the offense and the allegations relied

       upon by the State for the elements. The jury was clearly instructed that the

       State was required to prove each of the elements, including those in paragraph

       5. Unlike the instructions in Dill and Ludy, the instruction here did not unfairly

       focus the jury’s attention on or highlight a single piece of evidence. The trial

       court did not err by instructing the jury with Final Instruction 9.


                                                 Conclusion
[15]   Any error in the admission of the contents of Price’s purse was harmless, and

       the trial court properly instructed the jury. We affirm Price’s convictions for

       four counts of Class B felony burglary.


[16]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




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