                                                                                        FILED
                                                                                    Mar 16 2017, 9:45 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
      Elkhart, Indiana                                         Attorney General of Indiana

                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Keenan J. P. Mardis,                                     March 16, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A05-1610-CR-2327
              v.                                               Appeal from the Elkhart Circuit
                                                               Court
      State of Indiana,                                        The Honorable Terry C.
      Appellee-Plaintiff.                                      Shewmaker, Judge
                                                               Trial Court Cause No.
                                                               20C01-1502-MR-1



      Najam, Judge.


                                       Statement of the Case
[1]   Keenan J.P. Mardis appeals his conviction for murder, a felony, following a

      jury trial. Mardis raises the following two issues for our review:



      Court of Appeals of Indiana | Opinion 20A05-1610-CR-2327 |   March 16, 2017                           Page 1 of 6
              1.      Whether the State presented sufficient evidence to support
                      his conviction.


              2.      Whether the trial court committed fundamental error
                      when it instructed the jury.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On December 19, 2014, Mardis and others confronted Lenell Williams and

      Ontario Brown on Wagner Avenue in Elkhart, near the Washington Gardens

      apartments. One of Mardis’ companions, Zirei Jackson, began to fight with

      Brown. During the fight, Mardis told Jackson to “take his belt when you knock

      him out.” Tr. Vol. I at 139-40. Brown was wearing a designer belt worth about

      $300.


[4]   The fight between Jackson and Brown ended and the two groups began to walk

      away from each other. But then Mardis “came out of nowhere,” “pulled a

      revolver,” and “told [Brown] to give him his belt.” Id. at 145. Brown refused.

      Mardis then shot Brown in the head and killed him.


[5]   The State charged Mardis with murder, a felony. At his ensuing jury trial, the

      court instructed the jury as follows, without objection from Mardis’ counsel:


              Under the law of this state, a person charged with a crime is
              presumed to be innocent. To overcome the presumption of
              innocence, the State must prove the Defendant guilty of each
              element of the crime charged, beyond a reasonable doubt.


      Court of Appeals of Indiana | Opinion 20A05-1610-CR-2327 |   March 16, 2017   Page 2 of 6
              The Defendant is not required to present any evidence to prove
              his innocence or to prove or explain anything.


      Appellant’s App. Vol. II at 60. The jury found Mardis guilty of murder and the

      court sentenced him to fifty-eight years in the Department of Correction. This

      appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[6]   On appeal, Mardis first argues that the State failed to present sufficient evidence

      to support his conviction. In reviewing such claims, “we consider only the

      evidence and reasonable inferences most favorable to the convictions, neither

      reweighing evidence nor reassessing witness credibility.” Griffith v. State, 59

      N.E.3d 947, 958 (Ind. 2016). “We affirm the judgment unless no reasonable

      factfinder could find the defendant guilty.” Id. Mardis’ only argument on this

      issue is that the State failed to show that he was the person who shot and killed

      Brown.


[7]   We cannot agree. At trial, Williams testified that Mardis was the person who

      fatally shot Brown. Williams further testified that Mardis had told Jackson,

      during Jackson’s scuffle with Brown, to get Brown’s belt, which Mardis had

      then also demanded himself, at gunpoint, after the fight.


[8]   According to Mardis, Williams was not a reliable witness because “he gave a

      prior contradictory statement to police” in which he had initially stated that he

      did not know who had shot Brown. Appellant’s Br. at 12. It is true that

      Court of Appeals of Indiana | Opinion 20A05-1610-CR-2327 |   March 16, 2017   Page 3 of 6
      Williams acknowledged that he had initially told police that he “didn’t see

      anything” the night of the murder. Tr. Vol. I at 151-52. But Williams also

      clarified that he had not told the police the truth “the first day . . . [b]ecause [he]

      was scared” of Mardis. Id. at 150. However, after later talking to Brown’s

      mother, Williams informed the police of what he had actually seen. Id. And

      Williams made clear in his testimony to the jury that “from just a few minutes

      after [he] saw [the murder] until [the trial he has] always said . . . Keenan” was

      the shooter. Id. at 151. Mardis’ challenge to Williams’ testimony on appeal

      simply seeks to have this court reweigh Williams’ testimony and reassess his

      credibility, which we will not do.


                                       Issue Two: Jury Instruction

[9]   Mardis also asserts that the trial court committed fundamental error when it

      instructed the jury on the presumption of innocence. As our supreme court has

      explained:

              Appellate courts may, on rare occasions, resort to the
              fundamental error exception to address on direct appeal an
              otherwise procedurally defaulted claim. However, fundamental
              error is extremely narrow and available only when the record
              reveals a clearly blatant violation of basic and elementary
              principles, when the harm or potential for harm cannot be
              denied, and when the violation is so prejudicial to the rights of
              the defendant as to make a fair trial impossible.


      Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017) (citations omitted). With respect

      to jury instructions, we usually consider: “(1) whether the tendered instruction

      correctly states the law; (2) whether there was evidence presented at trial to
      Court of Appeals of Indiana | Opinion 20A05-1610-CR-2327 |   March 16, 2017   Page 4 of 6
       support giving the instruction; and (3) whether the substance of the instruction

       was covered by other instructions that were given.” McCowan v. State, 27

       N.E.3d 760, 763-64 (Ind. 2015) (citations omitted). We consider the

       instructions as a whole and do not reverse unless the whole of the instructions

       misled the jury as to the law in the case. Id. at 764.


[10]   In McCowan, our supreme court declared:


               A defendant in a criminal case is per se entitled to a jury
               instruction that the defendant is presumed innocent until proven
               guilty beyond a reasonable doubt. In addition, the defendant is
               entitled to request the following jury instruction, and the trial court
               must give this instruction if requested: “The presumption of
               innocence continues in favor of the defendant throughout the
               trial. You should fit the evidence to the presumption that the
               defendant is innocent if you can reasonably do so.” If the
               defendant adds to or varies this language in his request, inclusion
               of that variation remains within the discretion of the trial court,
               under the traditional three-prong analysis established by our
               jurisprudence.


       Id. at 766 (emphases added; citations omitted).


[11]   Here, again, the trial court instructed the jury as follows:

               Under the law of this state, a person charged with a crime is
               presumed to be innocent. To overcome the presumption of
               innocence, the State must prove the Defendant guilty of each
               element of the crime charged, beyond a reasonable doubt.


               The Defendant is not required to present any evidence to prove
               his innocence or to prove or explain anything.


       Court of Appeals of Indiana | Opinion 20A05-1610-CR-2327 |   March 16, 2017   Page 5 of 6
       Appellant’s App. Vol. II at 60. On appeal, Mardis does not challenge whether

       that language fails to instruct the jury that the defendant is presumed innocent

       until proven guilty beyond a reasonable doubt. Rather, he asserts, relying on

       McCowan, that that instruction was fundamental error because it did not also

       inform the jury that it was “required to maintain that presumption throughout

       the course of the trial.” Appellant’s Br. at 12.


[12]   Mardis misunderstands McCowan. The court in McCowan was unambiguous:

       the defendant is entitled “to request” an instruction that the presumption of

       innocence continues in his favor throughout the trial, and the trial court must

       give that instruction “if requested.” 27 N.E.3d at 766. But Mardis made no

       such request. Accordingly, the trial court had no burden to instruct the jury as

       Mardis alleges. See id. Indeed, Mardis’ argument on this issue would remove

       the burden of requesting additional information on the presumption of

       innocence in the jury instructions from the defendant and place that burden on

       the trial court. See, e.g., Gibson v. State, 51 N.E.3d 204, 212 (Ind. 2016) (stating

       that, to meet his burden to show fundamental error, the appellant must show

       that the trial court erred in not sua sponte raising the issue). Mardis’ argument is

       contrary to McCowan. Accordingly, we cannot say that the trial court

       committed fundamental error when it instructed the jury, and we affirm

       Mardis’ conviction for murder.


[13]   Affirmed.


       Bailey, J., and May, J, concur.

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