Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Mar 28 2013, 8:53 am
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:

JOHN C. BOHDAN                                     GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   JUSTIN F. ROEBEL
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMARCUS CAIN,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 02A03-1207-CR-335
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D06-1111-FC-375


                                         March 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

         Jamarcus Cain (“Cain”) appeals his conviction for Class C felony carrying a

handgun without a license.1 Cain alleges that the trial court committed reversible error

by giving the jury an additional instruction without rereading all of the final instructions

once deliberations began.

         We affirm.

                                            ISSUE

             Whether the trial court erred by giving the jury an additional instruction
             without rereading all of the final instructions once deliberations began.

                                            FACTS

         On the evening of November 18, 2011, Cain drove a car into a tree after he had

been drinking at a friend’s house. Michael Davis (“Davis”) heard the crash and saw Cain

running from the scene. Davis called the police and gave a description of the clothes

Cain was wearing. Officer Jason Anthony (“Officer Anthony”) of the Fort Wayne Police

Department responded to the call and observed Cain run in front of his vehicle a short

time later. Officer Anthony exited his vehicle and ordered Cain to stop. Cain stopped

running but continued walking toward a car in a nearby driveway. Officer Anthony then

observed Cain “[throw] something underneath the car.” (Tr. at 46). Officer Anthony

could not see what Cain threw but “immediately heard what sounded like metal hitting

concrete” after Cain made the “throwing motion.” (Tr. 47-9). Cain then attempted to

hide between the car and an adjacent garage. Cain eventually surrendered to Officer


1
    Ind. Code §§ 35-47-2-1, 35-47-2-23.
                                               2
Anthony. Other officers subsequently discovered a handgun underneath the car where

Officer Anthony saw Cain. No other metal items were found underneath the car.

       On November 28, 2011, the State charged Cain with carrying a handgun without a

license as a Class C felony.2 A jury trial was held on May 31, 2012. Closing arguments

for both parties focused on whether Cain had been in constructive possession of the

handgun. After those arguments, the trial court read the jury its final instructions. Jurors

were given a copy of the final instructions to take with them into the jury room. A little

over an hour into deliberations, the jurors asked for a definition of constructive

possession. After conferring with the lawyers, and reviewing Indiana Jury Rule 28 along

with the case of Ticher v. Davidson, 762 N.E.2d 1221 (Ind. 2002), the trial court realized

that it failed to give any instruction on possession. To remedy the omission, the trial

court decided it would give the jurors Indiana Pattern Jury instruction number 14.156

defining possession, while redacting portions dealing with sole and joint possession. The

trial court proposed to read the instruction to the jury and ordered that they reread all of

the instructions, cautioning them not to place any greater emphasis on the additional

instruction. Cain objected only to the trial court’s procedure of not rereading all of the




2
   The State also charged and convicted Cain of operating a vehicle with an alcohol concentration
equivalent to .15 or more, operating a vehicle while intoxicated, and driving while suspended as Class A
misdemeanors. Cain was also charged and convicted of failure to stop after accident as a Class B
misdemeanor. However, Cain did not appeal his convictions on these charges.

                                                   3
final instructions. The trial court proceeded with its proposed method of instructing the

jury; they subsequently returned a verdict of guilty on all charges.3



                                              DECISION

        Generally, the manner of instructing a jury lies within the sound discretion of the

trial court. Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct. App. 2002), trans. denied. A

trial court’s decision on the submission of jury instructions is reversible upon a showing

of an abuse of discretion. Id. A defendant is only entitled to a reversal if he affirmatively

demonstrates that the instructional error prejudiced his substantial rights. Hollowell v.

State, 707 N.E.2d 1014, 1023 (Ind. Ct. App. 1999).

        As a general rule, once jury deliberations commence, the trial court should not

give any additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind 1982).

“This rule precludes the trial court from giving any special emphasis, inadvertent or

otherwise, to a particular issue in the case, and thus avoids the possibility that the

additional instruction(s) may tell the jury what it ought to do concerning that issue.” Id.

Our Supreme Court has recognized a narrow exception to this rule:

        When confronted with a question from a jury which has commence
        deliberations, the challenge to the trial judge is to respond in a manner
        which accords with the legal requirements for final instructions and which
        is fair. The path is extremely hazardous for the court that would depart
        from the body of the final instructions and do other than reread the final
        instructions…. Such a departure will be warranted in only the most
        extreme circumstances. It must serve to amend the final instructions by
        adding a necessary one previously omitted or correcting an erroneous one,

3
   In a bifurcated proceeding, the State presented evidence that Cain had been convicted of a felony within
fifteen (15) years of November 18, 2011 to satisfy part II of the charging information for the handgun.
The jury found Cain guilty of this part of the charge as well, hence the conviction for a Class C felony.
                                                    4
       and must be fair to the parties in the sense that it should not reflect the
       judge’s view of factual matters. Thus, it is only when the jury question
       coincides with an error or legal lacuna in the final instructions that a
       response other than rereading from the body of final instructions is
       permissible.

Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981) (citations omitted).

       Here, Cain argues that the trial court erred in not rereading all of the final

instructions along with the omitted instruction regarding possession. Cain relies on our

Court’s decision in Graves v. State, 714 N.E.2d 724. (defendant’s conviction reversed

where the trial court gave an additional instruction after deliberations had begun without

rereading all of the final instructions). This Court also recently decided a case similar to

Graves in Dowell v. State, 973 N.E.2d 58 (Ind. Ct. App. 2012). Dowell, along with his

codefendant, planned to rob a man they encountered at a bar who was drunk and carrying

a large amount of cash. They lured the victim to an agreed upon location, where Dowell

hit the victim with a baseball bat, the accomplice took the victim’s money. At trial, the

jury was instructed about the elements of robbery, but not accomplice liability. During

deliberations, the jury essentially asked if Dowell could be convicted under the law of

accomplice liability. The trial court responded by sending a note to the jury stating

“Indiana law provides that a person who aids another person to commit an offense

commits that offense.” Id. at 59. The trial court did not bring the jury back into the

courtroom or reread all of the instructions. We found that this was a reversible error

because the additional instruction caused the type of impermissible emphasis that

Crowdus aims to prevent. We distinguish Cain’s case from Graves and Dowell.



                                             5
       First, contrary to Cain’s assertion, the trial court in his case did not read the

instruction in isolation as in Graves or Dowell. The trial court read the additional

instruction and admonished the jury as follows:

       Thank you Ronell. Ladies and gentlemen I’m not sure who the Foreman is
       and it’s not important at this particular juncture or time but somebody on
       the jury has asked the question about what is constructive possession. That
       note was provided to myself. I have discussed with counsel. You have
       asked a specific question of law. Our jury rules permit the trial courts to
       answer your specific question of law and provide to you an omitted
       instruction. I will provide to you a copy of the omitted instruction, I will
       read it to you and also ask and direct and order that you re-read[sic] all of
       the instructions that I’ve provided. Don’t give any specific emphasis to this
       instruction over any of the other instructions but consistent with the status
       of the law the court would instruct you that the word possess means to own
       or to exert control over. The word possession can take on several different
       but related meanings. There are two kinds of possession, actual and
       constructive possession. A person who knowingly has direct physical
       control of a thing at a given time is then in actual possession of it. A person
       who, although not in actual possession , knowingly has both the power and
       the intention at a given time to exercise control over a thing is then in
       constructive possession of it. Possession may be actual or constructive.

       I will provide to Ronell, there’s twelve copies. Please put these in your
       packets. Again direct and order that you re-read[sic] all of the instructions,
       place that in an appropriate place and don’t give it any extra emphasis or
       anything over and above any of the other instructions that I’ve provided.
       And Ronell you may take the jury to continue deliberations.

(Tr. 157-58).


Indeed, there was an omission in instructing the jury on the definition of possession. Our

Supreme Court’s decisions in Crowdus and Jenkins permitted the trial court to deviate

from rereading all of the final instructions. See Crowdus, 431 N.E.2d at 798; Jenkins,

424 N.E.2d at 1003. Hence, the ultimate question in our review is whether the trial

court’s deviation was fair to the parties.

                                             6
        In response to the jury’s question, the trial court read Indiana Pattern Instruction

number 14.156 defining possession. The trial court also admonished the jury several

times to reread all of the instructions and not to give it more weight than any of the other

instructions given. Finally, the instruction did not emphasize one issue over another. In

fact, possession was the only contested issue. During the trial, Cain admitted that he had

been drinking that evening, that he crashed the car into a tree, and that he fled the scene

of the accident. Both lawyers focused on the possession of the handgun in their closing

arguments, essentially conceding Cain’s guilt of the other offenses. Given the trial

court’s use of the pattern instruction, the thorough admonishment to the jury, and the

resolution of the case depending on one issue, we find that the trial court’s actions in this

case were fair to both parties.4

        Affirmed.

ROBB, C.J., and MAY, J., concur.




4
  Although we find no error with the trial court’s procedure in this case, we stress that the best practice in
similar situations is to add any omitted instructions in their appropriate place and reread all final
instructions to the jury.
                                                      7
