MEMORANDUM DECISION                                                                  FILED
                                                                                Apr 11 2019, 10:29 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           Court of Appeals
                                                                                      and Tax Court

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
Emilee L. Stotts                                         Curtis T. Hill, Jr.
Huntington County Public Defender                        Attorney General of Indiana
Marion, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary Lee Allred,                                         April 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1538
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1704-F6-95



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019                Page 1 of 7
                                            Statement of the Case

[1]   Gary Allred (“Allred”) appeals his conviction for Level 6 felony auto theft.1 He

      argues that the trial court abused its discretion by giving an accomplice liability

      preliminary instruction, which he contends substantially prejudiced his right to

      present a defense. Concluding that Allred’s substantial rights were not

      prejudiced and that the trial court did not abuse its discretion, we affirm

      Allred’s conviction.


[2]   We affirm.


                                                           Issue

                 Whether the trial court abused its discretion by instructing the jury
                 on the law regarding accomplice liability.

                                                          Facts

[3]   On January 12, 2017, Allred accompanied his lifelong friend, Jami Karst

      (“Karst”), to test-drive cars. The two went to a local car lot, and Karst decided

      to test-drive a black 2001 Kia Sportage. As Karst drove the vehicle, she and

      Allred had a conversation about stealing the car. Karst eventually drove the car

      to a nearby hardware store. Allred took the original key to the car and entered

      the store where he had a copy of the key made. Allred then gave both the




      1
          IND. CODE § 35-43-4-2.5 (2017). This statute was repealed effective July 1, 2018.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019           Page 2 of 7
      original key and duplicate to Karst, and she left the hardware store to return the

      car.


[4]   Later that night, Karst returned to the car lot, unlocked the Kia with the newly-

      created key, and drove the car away. Karst picked up Allred, as well as her son

      and her son’s friend. The group then drove to Florida. Eventually, the car

      broke down, and they abandoned it in Florida.


[5]   After returning to Indiana, the State charged Allred with Level 6 felony auto

      theft. Karst was interviewed by police about her connection with the theft of

      the car. Initially, she told police that Allred was the individual who stole the

      car from the lot. However, two days before Allred’s jury trial, Karst told

      Allred’s counsel that she would testify that she was the individual who returned

      at night and stole the car. The next day, Karst informed the State that her

      anticipated testimony was going to change.


[6]   Based on Karst’s disclosure the day before trial, the State tendered the following

      preliminary instruction (“Preliminary Instruction 8”):


              Aiding, Inducing, or Causing a crime, I.C. 35-41-2-4

              A person who knowingly or intentionally aids, induces, or causes
              another person to commit Auto Theft is guilty of Auto Theft,
              even though he does not personally participate in each act
              constituting Auto Theft.

              A person may be convicted of Auto Theft by knowingly aiding,
              inducing, or causing another to commit Auto Theft, even if the
              other person has not been prosecuted for, has not been convicted
              of, or has been acquitted of Auto Theft.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019   Page 3 of 7
              In order to commit Auto Theft by aiding, inducing or causing
              another to commit Auto Theft, a person must have knowledge
              that he is aiding, inducing, or causing the commission of Auto
              Theft. To be guilty, he does not have to personally participate in
              the crime nor does he have to be present when the crime is
              committed. Merely being present at the scene of the crime is not
              sufficient to prove that he aided, induced, or caused the crime.
              Failure to oppose the commission of the crime is also insufficient
              to prove aiding, inducing or causing another to commit the
              crime. But presence at the scene of the crime and/or failure to
              oppose the crime’s commission are factors which may be
              considered in determining whether there was aiding, inducing, or
              causing another to commit the crime.

      (App. 35).


[7]   On the day of Allred’s jury trial, the trial court asked if there were any

      objections to the preliminary jury instructions. Allred’s counsel objected to the

      inclusion of Preliminary Instruction 8, stating, “I would object primarily

      because its been presented to me without any ample time to prepare my case or

      my defense with the Defendant on this particular . . . instruction here. I feel

      that the . . . Defendant is being unfairly . . . and unjustly treated by having to

      now defend from a different direction and I would ask that the instruction be

      removed.” (Tr. 39-40). The trial court overruled the objection and gave the

      instruction.


[8]   At trial, Karst testified that while she was the individual who took the car off

      the car lot, Allred was aware of and actively participated in the theft of the car.

      Karst testified, in relevant part, as follows:


              [State]: Did [Allred] know that you were planning to steal the
              car?

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019   Page 4 of 7
              [Karst]: Yes.

              [State]: Did you discuss it with him prior to going to [the
              hardware store]?

              [Karst]: Yes.

                                                       ***


              [State]: Did you guys talk about stealing the car prior to even
              going to the car lot?

              [Karst]: Yes.

              [State]: Why was he making the key then?

              [Karst]: So I could go back later and take [the car].

      (Tr. 111).


[9]   Allred also testified and offered testimony contrary to Karst. He testified that

      he had no knowledge of the auto theft, did not participate in the auto theft, and

      that Karst alone was responsible for stealing the car. Allred also admitted that

      he had a copy of the key made. During closing arguments, Allred’s defense was

      twofold. First, he argued that Karst alone was responsible for stealing the car.

      Second, he argued that he did not knowingly or intentionally aid, induce, or

      cause Karst to steal the car. The jury subsequently found Allred guilty of auto

      theft, and he admitted to being an habitual offender. The trial court then

      sentenced Allred to two and one-half (2½) years for the auto theft conviction

      and enhanced the sentence by four (4) years for being an habitual offender,

      resulting in an aggregate sentence of six and one-half (6½) years. Allred now

      appeals.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019   Page 5 of 7
                                                  Discussion

[10]   Allred argues that the trial court erred when it gave Preliminary Instruction 8.

       We afford trial courts broad discretion in the manner of instructing a jury, and

       we review such decisions only for an abuse of discretion. Hayden v. State, 19

       N.E.3d 831, 838 (Ind. Ct. App. 2014), reh’g denied, trans. denied. When

       reviewing a jury instruction on appeal, we look to: (1) whether the tendered

       instruction correctly states the law; (2) whether there is evidence in the record to

       support giving the instruction; and (3) whether the substance of the proffered

       instruction is covered by other instructions. Id. We will reverse a conviction

       only where the appellant demonstrates that an error in the jury instructions

       prejudiced his substantial rights. Id. Further, we note that the purpose of jury

       instruction 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. Id.


[11]   Here, Allred concedes that the “jury instruction properly states the law[.]”

       (Allred’s Br. 10). He also does not argue that the evidence in the record did not

       support giving the jury instruction or that the substance of the instruction was

       covered by other instructions. Rather, Allred contends that “he was not

       afforded the opportunity to proffer a reasonable defense and his substantial

       rights were prejudiced by allowing this instruction.” (Allred’s Br. 7).


[12]   To the extent that Allred argues that he was not able to present a reasonable

       defense, our review of the record reveals otherwise. Allred testified on his own

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019   Page 6 of 7
       behalf and put forward the defense that he had no knowledge of the auto theft,

       did not participate in the auto theft, and that Karst alone was responsible for

       stealing the car. Allred states that prior to the inclusion of Preliminary

       Instruction 8, “[he] had [a] meaningful opportunity to prepare a defense,

       namely that Ms. Karst took the vehicle instead of him, one that he had prepared

       to testify to, and did testify to at trial.” (Allred’s Br. 10). However, on appeal,

       Allred has failed to explain what his defense would have been or how the trial

       court’s preliminary instruction substantially prejudiced his right to present a

       defense. Indeed, he makes broad assertions about needing time to “change[]

       the manner in which he had to defend his case” but identifies no particular

       action he was precluded from taking due to a lack of time. (Allred’s Br. 11).

       Although the right to present a defense, which includes the right to present the

       defendant’s version of the facts, is of the utmost importance, it is not absolute.

       Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). Despite Allred’s claims, we

       find that he was able to present a defense. Here, Allred presented his version of

       the facts when he testified that he did not aid Karst in auto theft. As a result,

       the trial court did not abuse its discretion in giving Preliminary Instruction 8.


[13]   Affirmed.


       Najam, J., and Altice, J., concur.




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