MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    Jul 23 2020, 9:03 am
regarded as precedent or cited before any
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
Frederick Vaiana                                          F. Aaron Negangard
Indianapolis, Indiana                                     Chief Deputy Attorney General
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Dwayne Jones,                                     July 23, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2526
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G01-1705-F1-19420



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020                Page 1 of 12
                                             Case Summary
[1]   Anthony Jones appeals his convictions for attempted rape, a Level 1 felony;

      robbery resulting in serious bodily injury, a Level 2 felony; battery, a Class B

      misdemeanor; and criminal confinement, a Level 5 felony. We affirm.


                                                      Issue
[2]   Jones raises one issue, which we restate as whether the trial court committed

      fundamental error in instructing the jury.


                                                     Facts
[3]   As a result of a series of attacks on women in Indianapolis on May 22, 2017,

      and May 26, 2017, the State charged Jones with: (1) rape, a Level 1 felony; (2)

      robbery resulting in serious bodily injury, a Level 2 felony; (3) criminal

      confinement, a Level 3 felony; (4) kidnapping, a Level 3 felony; (5) sexual

      battery, a Level 4 felony; (6) battery resulting in serious bodily injury, a Level 5

      felony; (7) intimidation, a Level 6 felony; (8) strangulation, a Level 6 felony; (9)

      battery resulting in bodily injury, a Class A misdemeanor; (10) battery, a Class

      B misdemeanor; (11) battery, a Class B misdemeanor; (12) battery, a Class B

      misdemeanor; (13) confinement, a Level 5 felony; (14) intimidation, a Level 6

      felony; (15) strangulation, a level 6 felony; and (16) battery resulting in

      moderate bodily injury, a Level 6 felony.


[4]   At Jones’s September 2019 jury trial, the trial court gave the jury preliminary

      instructions that defined each charge; listed the elements of each charge; and for

      each charge, informed the jury that it must find Jones not guilty “if the State
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 2 of 12
failed to prove each of these elements beyond a reasonable doubt.” See Tr. Vol.

II pp. 134-143; Appellant’s App. Vol. II pp. 176-191. The trial court also gave

the following preliminary instructions, which were based on the pattern jury

instructions, to the jury:


        Instruction Number 15. The burden is upon the State to prove
        beyond a reasonable doubt that the Defendant is guilty of the
        crimes charged. It is a strict and heavy burden. The evidence
        must overcome any reasonable doubt concerning the Defendant’s
        guilt, but it does not mean that a Defendant’s guilt must be
        proved beyond all possible doubt.


        A reasonable doubt is a fair, actual, and logical doubt based upon
        reason and common sense. A reasonable doubt may arise either
        from the evidence or from the -- a lack of evidence. Reasonable
        doubt exists when you are not firmly convinced of the
        Defendant’s guilt after you have weighed and considered all the
        evidence.


        A Defendant must not be convicted on suspicion or speculation.
        It is not enough for the State to show that the Defendant is
        probably guilty. On the other hand, there are very few things in
        the world that we know with absolute certainty. The State does
        not have to overcome every possible doubt.


        The State must prove each element of the crime by evidence that
        firmly convinces each of you and leaves no reasonable doubt.
        The proof must be so convincing that you can rely and act upon
        it in this matter of the highest importance.


        If you find that there is a reasonable doubt that the Defendant is
        guilty of the crimes, you must give the Defendant the benefit of


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 3 of 12
              the doubt and find the Defendant not guilty of the crimes under
              consideration.


              Instruction Number 16. Under the law of this State, a person
              charged with a crime is presumed to be innocent. This
              presumption of innocence continues in favor of the Defendant
              throughout each stage of the trial and you should fit the evidence
              presented to the presumption that the Defendant is innocent, if
              you can reasonably do so.


              If the evidence lends itself to two reasonable interpretations, you
              must choose the interpretation that’s consistent with the
              Defendant’s innocence. If there is only one reasonable
              interpretation, you must accept that interpretation and consider
              the evidence with all the other evidence in the case in making
              your decision.


              To overcome the presumption of innocence, the State must prove
              the Defendant guilty of each element of the crimes charged
              beyond a reasonable doubt.


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


      Tr. Vol. II pp. 144-46; Appellant’s App. Vol. II pp. 203-205.


[5]   After the close of evidence, the trial court gave the following final instructions:


              Instruction 1. . . . The court must point out in the instructions as
              heretofore instructed you as to reach these [sic] from trial, the
              burden of proof, the credibility of witnesses and the manner of
              weighing the evidence received which preliminary instructions
              should be considered by you along with the following final instructions
              [in] arriving at your verdict in this case. As to these instructions on

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 4 of 12
              the law read to you by the Court in which you will be allowed to
              take to the jury room with you, it is impractical to embody all
              applicable law in only one instruction, so in considering one
              instruction, you should construe it in connection with and in light of
              every other instruction given.


                                                    *****


              Instruction number [8.] [U]nder the law of this state, a person
              charged with a crime is presumed to be innocent. This
              presumption of innocence continues in favor of the defendant
              throughout each stage of the trial and you should fit the evidence
              presented to the presumption that the defendant is innocent if
              you can reasonably do so. 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.


      Tr. Vol. III pp. 206, 208 (emphasis added); Appellant’s App. Vol. II pp. 216-

      217, 225.


[6]   The trial court also instructed the jury that, if the State failed to prove rape as

      charged in Count I, it could consider whether the State proved the lesser-

      included offense of attempted rape. The trial court then defined attempted rape

      and noted that the State was required to prove the elements “beyond a

      reasonable doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20.


[7]   The jury found Jones guilty on all counts, except it found Jones not guilty of

      kidnapping and it found Jones guilty of attempted rape, a Level 1 felony, rather

      than rape. Due to double jeopardy concerns, the trial court entered the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 5 of 12
       following convictions: attempted rape, a Level 1 felony; robbery, a Level 5

       felony; battery, a Class B misdemeanor; and criminal confinement, a Level 5

       felony. The trial court sentenced Jones to an aggregate sentence of thirty-eight

       and one-half years in the Department of Correction. Jones now appeals.


                                                    Analysis
[8]    Jones argues that the trial court committed fundamental error 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 regarding jury instructions

       only if there is an abuse of that discretion. Pattison v. State, 54 N.E.3d 361, 365

       (Ind. 2016). An abuse of discretion occurs only if the decision is clearly against

       the logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom. Schuler v.

       State, 132 N.E.3d 903, 904 (Ind. 2019).


[9]    We determine whether the instruction states the law correctly, whether it is

       supported by evidence in the record, and whether its substance is covered by

       other instructions. Pattison, 54 N.E.3d at 365. “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.” Id.


[10]   Where, as here, the defendant failed to object to the alleged instructional defect,

       reversal is warranted only in instances of fundamental error. Id. “Error is

       fundamental if it is ‘a substantial blatant violation of basic principles’ and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 6 of 12
       where, if not corrected, it would deny a defendant fundamental due process.”

       Id. This exception to the general rule requiring a contemporaneous objection is

       narrow, providing relief only in “egregious circumstances” that made a fair trial

       impossible. Id.


[11]   Jones appears to make two arguments regarding the instructions given by the

       trial court: (1) the trial court failed to instruct the jury regarding the meaning of

       “beyond a reasonable doubt” in its final instructions; and (2) except for Count I,

       the trial court failed to advise the jury of the requisite burden of proof in the

       final instructions. Jones acknowledges, however, that he did not object to the

       instructions. 1




       1
           Indiana Trial Rule 51 requires a party to state objections to instructions and provides, in relevant part:
                (A) Preliminary Instructions. When the jury has been sworn the court shall instruct the jury in
                accordance with Jury Rule 20. Each party shall have reasonable opportunity to examine these
                preliminary instructions and state his specific objections thereto out of the presence of the jury
                and before any party has stated his case. (The court may of its own motion and, if requested by
                either party, shall reread to the jury all or any part of such preliminary instructions along with
                the other instructions given to the jury at the close of the case. A request to reread any
                preliminary instruction does not count against the ten [10] instructions provided in subsection
                (D) below.) The parties shall be given reasonable opportunity to submit requested instructions
                prior to the swearing of the jury, and object to instructions requested or proposed to be given.
                (B) Final Instructions. The judge shall instruct the jury as to the law upon the issues presented
                by the evidence in accordance with Jury Rule 26.
                (C) Objections and Requested Instructions Before Submission. At the close of the evidence and
                before argument each party may file written requests that the court instruct the jury on the law
                as set forth in the requests. The court shall inform counsel of its proposed action upon the
                requests prior to their arguments to the jury. No party may claim as error the giving of an
                instruction unless he objects thereto before the jury retires to consider its verdict, stating
                distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be
                given to make the objection out of the hearing of the jury. The court shall note all instructions
                given, refused or tendered, and all written objections submitted thereto, shall be filed in open
                court and become a part of the record. Objections made orally shall be taken by the reporter
                and thereby shall become a part of the record.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020                          Page 7 of 12
                                                       I. Reasonable Doubt

[12]   Jones contends the trial court should have instructed the jury in the final

       instructions regarding the definition of “beyond a reasonable doubt.” In

       Preliminary Instruction 15 and 16, the trial court specifically defined the burden

       of proof. 2 The trial court did not repeat these instructions regarding the burden

       of proof in its final instructions; 3 the trial court did, however, inform the jury

       that “preliminary instructions should be considered by you along with the




       2
           Indiana Jury Rule 20 provides the following regarding preliminary instructions:
                (a) The court shall instruct the jury before opening statements by reading the appropriate
                instructions which shall include at least the following:
                           (1) the issues for trial;
                           (2) the applicable burdens of proof;
                           (3) the credibility of witnesses and the manner of weighing the testimony to be
                           received;
                           (4) that each juror may take notes during the trial and paper shall be provided, but
                           note taking shall not interfere with the attention to the testimony;
                           (5) the personal knowledge procedure under Rule 24;
                           (6) the order in which the case will proceed;
                           (7) that jurors, including alternates, may seek to ask questions of the witnesses by
                           submission of questions in writing;
                           (8) that jurors, including alternates, are permitted to discuss the evidence among
                           themselves in the jury room during recesses from trial when all are present, as long as
                           they reserve judgment about the outcome of the case until deliberations commence.
                           The court shall admonish jurors not to discuss the case with anyone other than
                           fellow jurors during the trial;
                                                              *****
                (c) It is assumed that the court will cover other matters in the preliminary instructions.
                (d) The court shall provide each juror with the written instructions while the court reads them.


       3
         Indiana Pattern Criminal Jury Instruction No. 13.1000 sets forth a pattern instruction for “Burden of
       Proof—Reasonable Doubt—Final Instruction.” The trial court did not read this pattern instruction to the
       jury.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020                         Page 8 of 12
       following final instructions [in] arriving at your verdict in this case.” Tr. Vol.

       III p. 206; Appellant’s App. Vol. II p. 216.


[13]   In support of his arguments, Jones relies on Indiana Jury Rule 26(a), which

       provides:


               The court shall read appropriate final instructions, which shall
               include at least the following:


               (1) the applicable burdens of proof;


               (2) the credibility of witnesses; and,


               (3) the manner of weighing the testimony received.


               The court shall provide each juror with written instructions
               before the court reads them. Jurors shall retain the written
               instructions during deliberations. The court may, in its
               discretion, give some or all final instructions before final
               arguments, and some or all final instructions after final
               arguments.


[14]   Although the trial court did not instruct the jury regarding the burden of proof

       in the final instructions as required by Jury Rule 26, we cannot conclude that

       fundamental error occurred. It is well-settled that instructions must be

       considered as a whole and in relation to each other. Pattison, 54 N.E.3d at 365.

       The substance of the alleged missing final instruction was adequately covered

       by the preliminary instructions read to the jury and incorporated in the final

       instructions. Because the jury instructions, considered as a whole, did not make


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 9 of 12
       a fair trial impossible, the trial court did not fundamentally err when it did not

       repeat the burden of proof in the final instructions. See, e.g., G.C.B. v. State, 496

       N.E.2d 769, 770 (Ind. 1986) (holding that, because the preliminary instructions

       outlined the elements of the offense and the jury was told to consider the

       preliminary instructions in deliberations, the defendant’s rights were not

       violated by the omission of a final instruction on the elements of robbery); Cruz

       Rivera v. State, 127 N.E.3d 1256, 1259 (Ind. Ct. App. 2019) (finding no

       fundamental error where, while the trial court instructed the jury on the burden

       of proof during final instructions, the trial court did not instruct the jury on the

       credibility of witnesses and the manner of weighing testimony), trans. denied.


                                                  II. Burden of Proof

[15]   Next, Jones argues the trial court failed to instruct the jury regarding the burden

       of proof for each count except for Count I. In the preliminary instructions, the

       trial court defined each charge; listed the elements of each charge; and for each

       charge, informed the jury that it must find Jones not guilty “if the State failed to

       prove each of these elements beyond a reasonable doubt.” See Tr. Vol. II pp.

       134-143; Appellant’s App. Vol. II pp. 176-191. In the final instructions, the trial

       court did not repeat those preliminary instructions. 4 The trial court did,




       4
           Indiana Pattern Criminal Jury Instruction 13.3900 provides:

                [Give standard instruction on charged offense, which should conclude with the following
                paragraph:]
                If the State failed to prove each of these elements beyond a reasonable doubt, you must find the
                Defendant not guilty of ___________, a Level ___________ felony, as charged in Count
                ___________.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020                      Page 10 of 12
       however, instruct the jury that, if the State failed to prove rape as charged in

       Count I, the jury could consider whether the State proved the lesser-included

       offense of attempted rape. The trial court then defined attempted rape and

       noted that the State was required to prove the elements “beyond a reasonable

       doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20. The trial court

       also informed the jury that “preliminary instructions should be considered by

       you along with the following final instructions [in] arriving at your verdict in

       this case.” Tr. Vol. III p. 206; Appellant’s App. Vol. II p. 216.


[16]   Although the trial court’s final instructions did not repeat the elements of the

       charged offenses and the burden with respect to each charged offense, again, it

       is well-settled that instructions must be considered as a whole and in relation to

       each other. Pattison, 54 N.E.3d at 365. The preliminary instructions, which

       were incorporated by the final instructions, adequately covered the burden of

       proof for each charge. The final instructions then also covered the burden of

       proof for the lesser-included offense of attempted rape for Count I. Because the

       jury instructions, considered as a whole, did not make a fair trial impossible, the

       trial court did not fundamentally err when it did not repeat the preliminary

       instructions regarding each offense in the final instructions. See, e.g., G.C.B.,

       496 N.E.2d at 770 (holding that, because the preliminary instructions outlined

       the elements of the offense and the jury was told to consider the preliminary

       instructions in deliberations, the defendant’s rights were not violated by the

       omission of a final instruction on the elements of robbery).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 11 of 12
                                                 Conclusion
[17]   Jones has failed to demonstrate fundamental error regarding the jury

       instructions. We affirm.


[18]   Affirmed.


       Riley, J., and Mathais, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020   Page 12 of 12
