MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                             Apr 24 2018, 6:16 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
                                                         James B. Martin
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Morton,                                          April 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1708-CR-1738
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1605-F1-19983



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018         Page 1 of 9
                                               Case Summary
[1]   Anthony Morton (“Morton”) appeals his convictions for attempted murder, a

      Level 1 felony,1 and arson, as a Level 2 felony.2 The sole issue he raises on

      appeal is whether the trial court committed fundamental error when it

      instructed the jury.


[2]   We affirm.



                                 Facts and Procedural History
[3]   On May 25, 2016, the State charged Morton with attempted murder, a Level 1

      felony, and two counts of arson resulting in serious bodily, a Level 2 felony.

      On March 14, 2017, the State filed an additional information charging that

      Morton was a habitual offender.3


[4]   Morton was tried by jury on June 5 and 6, 2017. The trial court gave the jury

      preliminary instructions regarding, among other things, their duty as jurors,

      including refraining from use of electronics and independent research during

      the trial (instruction number 1); the procedure to follow if they have personal

      knowledge of the case (instruction number 2); and juror questions and the

      procedure for asking them (instruction number 11). Appellant’s Appendix Vol.




      1
          Ind. Code § 35-42-1-1 (2016); I.C. § 35-41-5-1(a).
      2
          I.C. § 35-43-1-1(a).
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 2 of 9
      II at 142-44, 158. In addition, the trial court gave the jury preliminary

      instructions regarding the burden of proof and reasonable doubt (instruction

      number 7), and the credibility of witnesses and weighing evidence (instruction

      number 8). Id. at 154-55.


[5]   At the conclusion of the trial, the trial court gave the jury two final instructions

      admonishing them to consider the instructions—preliminary and final—as a

      whole (instruction numbers 13 and 14). Id. at 161-62. In addition, the trial

      court once again gave the instruction regarding burden of proof and reasonable

      doubt (instruction number 21). Id. at 169.


[6]   No alternate jurors were directed to serve, and the jury found Morton guilty of

      attempted murder and one count of arson as a Level 2 felony. The jury found

      Morton not guilty of the second count of arson. Morton admitted to the

      allegation that he is a habitual offender. On July 13, 2017, the trial court

      sentenced Morton to forty years for attempted murder, enhanced by twenty

      years pursuant to the habitual offender adjudication, and to six years for arson

      as a Level 2 felony. This appeal ensued.



                                 Discussion and Decision
[7]   Morton contends that the trial court erred in instructing the jury.


              Because instructing the jury is a matter within the sound
              discretion of the trial court, we will reverse a trial court’s decision
              to tender or reject a jury instruction only if there is an abuse of
              that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 3 of 9
              2013). We determine whether the instruction states the law
              correctly, whether it is supported by record evidence, and
              whether its substance is covered by other instructions. Id. at 345-
              46. “Jury instructions are to be considered as a whole and in
              reference to each other; error in a particular instruction will not
              result in reversal unless the entire jury charge misleads the jury as
              to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344
              (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196
              (Ind. 1996)).


      Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).


[8]   At trial, Morton did not object to either the preliminary or final jury

      instructions.


              Where … the defendant failed to preserve an alleged instructional
              defect, the objection is waived, and reversal is warranted only in
              instances of fundamental error. Wright v. State, 730 N.E.2d 713,
              716 (Ind. 2000). “Error is fundamental if it is ‘a substantial
              blatant violation of basic principles’ and where, if not corrected,
              it would deny a defendant fundamental due process.” Id.
              (quoting Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998)). This
              exception to the general rule requiring a contemporaneous
              objection is narrow, providing relief only in “egregious
              circumstances” that made a fair trial impossible. Halliburton v.
              State, 1 N.E.3d 670, 678 (Ind. 2013).


      Id.; see also Rosales v. State, 23 N.E.3d 8, 15 (Ind. 2015) (“[T]he mere possibility

      of prejudice … from the inaccurate instruction does not justify reversal of [a]

      conviction without a showing that [the defendant] incurred actual prejudice.”).

      When determining whether a defendant suffered a due process violation based

      on an incorrect jury instruction,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 4 of 9
               we look to the erroneous instruction not in isolation, but in the
               context of all relevant information given to the jury, including
               other instructions. We find no due process violation where all
               such information, considered as a whole, does not mislead the
               jury as to a correct understanding of the law.


       Dickenson v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005) (citations omitted),

       trans. denied.


[9]    Morton maintains that the trial court committed fundamental error by giving

       insufficient instructions in preliminary instruction numbers 1 (regarding the

       duty of jurors), 2 (regarding the personal knowledge of a juror), and 11

       (regarding juror questions and procedure). He also contends that the trial court

       fundamentally erred when it failed to repeat preliminary instruction number 8

       (regarding credibility of witnesses and weighing evidence) in the final

       instructions.


[10]   The purpose of jury instructions “is to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783

       N.E.2d 1140, 1163 (Ind. 2003). As an initial matter, we note that all of the

       instructions Morton challenges, with the exception of final instruction number




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 5 of 9
       13, are, verbatim, the Indiana Pattern Criminal Jury Instructions.4 As our

       Supreme Court has noted,


               The Indiana Pattern Jury Instructions are prepared under the
               auspices of the Indiana Judges Association in conjunction with
               the Indiana Judicial Conference Criminal and Civil Instruction
               Committees. Although they are not formally approved for use,
               they are tacitly recognized by Indiana Trial Rule 51(E).
               Halliburton v. State, 1 N.E.3d 670, 684 n. 9 (Ind. 2013).


       Campbell v. State, 19 N.E.3d 271, 275 n.3 (Ind. 2014). Thus, we have held that it

       is the “preferred practice” for trial courts to use the pattern jury instructions.

       Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (noting the pattern

       instructions have the “apparent approval of the Indiana Supreme Court as

       evidenced by the preferred treatment given such instructions in [Indiana Rule of

       Trial Procedure 51(E)]”), trans. denied.


[11]   Preliminary jury instruction number 1, which recites verbatim the pattern

       instruction regarding the use of electronic devices and the prohibition against

       doing independent investigation and research, is an accurate statement of the

       law and, as such, we cannot say that it in any way misled the jury. Contrary to

       Morton’s assertion, the instruction adequately advises the jury members that



       4
         Preliminary instruction number 1 is Indiana Pattern Criminal Jury Instruction (“pattern instruction”)
       number 1.0100; preliminary instruction number 2 is pattern instruction number 1.2700; preliminary
       instruction number 7 is pattern instruction number 1.1500; preliminary instruction number 8 is pattern
       instruction number 1.1700; and preliminary instruction number 11 is pattern instruction number 1.2200. Vol.
       1, Indiana Judges Association, Indiana Pattern Jury Instructions—Criminal, 4th Ed., Sections 1.0100;
       1.1500; 1.1700; 1.2200; and 1.2700 (2017). Final instruction number 14 is pattern instruction number
       13.0100. Id., Vol. 2, Sec. 13.0100.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018           Page 6 of 9
       they may not use electronic devices or conduct their own research until their

       service as jurors is complete. Morton has failed to show that the giving of this

       instruction was fundamental error.


[12]   Preliminary instruction number 11 is a verbatim recitation of the pattern

       instruction regarding juror questions and the process for asking such questions.

       Yet, Morton contends the instruction fails to adequately inform alternate jurors

       that they, too, may ask questions. We disagree. This instruction—like all the

       instructions—was read to all the jurors, including the alternates, and Morton

       has articulated no reason why alternate jurors would believe this specific

       instruction did not apply to them, while all other instructions did. Instruction

       number 11 is an accurate statement of the law and, as such, we cannot say that

       it in any way misled the jury, including the alternates.


[13]   Instruction number 2 is a verbatim recitation of the pattern instruction

       regarding personal knowledge of the jurors. As Morton points out, the

       instruction does not include “the personal knowledge procedure under [Jury]

       Rule 24[,]” as required by Jury Rule 20(a)(5).5 However, while instruction

       number 2 does not describe the procedures the trial court would employ in the

       event a juror notified the court of personal knowledge about the case, the

       instruction in no way misstates the law. Rather, it emphasized that jurors must

       inform the bailiff privately of such knowledge at the earliest opportunity. And,




       5
        The Indiana Jury Rules specify what instructions, at a minimum, a trial court must give. See Ind. Jury
       Rule 20 (regarding preliminary instructions); J.R. 26 (regarding final instructions).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018           Page 7 of 9
       of course, when the juror informs the bailiff that the juror has personal

       knowledge, that triggers the mandatory procedures discussed in Jury Rule 24;

       i.e., the court examines the juror and decides whether the juror must be

       excused. Because Morton has failed to show that he incurred actual prejudice

       from the giving of instruction number 2, we hold the giving of that instruction

       was not fundamental error.


[14]   Finally, Morton maintains that the trial court erred when it failed to repeat

       preliminary instruction number 8 (regarding credibility of witnesses and

       weighing evidence) in the final instructions, citing Indiana Jury Rule 26.

       However, it is well-settled that instructions must be considered as a whole and

       in relation to each other. E.g., Pattison, 54 N.E.3d at 365. And the trial court

       made specific note of this principle in two separate final instructions. The court

       gave final instruction 14, which is the pattern instruction stating that the jury

       must “consider all of the instructions [both preliminary and final] together.”

       Appellant’s App. Vol. II at 162. In addition, the trial court gave the jury final

       instruction 13, which emphasized this principal more specifically and

       explicitly—noting the preliminary instructions regarding “issues for trial, the

       burden of proof, the credibility of witnesses, and the manner of weighing the

       evidence … should be considered by you along with the following final

       instructions in arriving at your verdict in this case.” Id. at 161. Because the

       jury instructions, “considered as a whole, [did] not mislead the jury as to a

       correct understanding of the law[,]” Dickenson, 835 N.E.2d at 548-49, the trial




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 8 of 9
       court did not fundamentally err when it did not repeat preliminary instruction

       number 8 in the final instructions.



                                               Conclusion
[15]   Morton has failed to show that the trial court fundamentally erred in instructing

       the jury.


[16]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018   Page 9 of 9
