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

MICHAEL FRISCHKORN                                          GREGORY F. ZOELLER
Frischkorn Law LLC                                          Attorney General of Indiana
Fortville, Indiana
                                                            AARON J. SPOLARICH
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

                                                                                     FILED
                                                                                  Jan 16 2013, 9:09 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                            CLERK
                                                                                          of the supreme court,
                                                                                          court of appeals and
                                                                                                 tax court




CHRISTOPHER HUDSON,                                 )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 48A04-1207-CR-355
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Rudolph R. Pyle, III, Judge
                              Cause No. 48C01-1006-FC-208


                                         January 16, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                               Case Summary

           Christopher Hudson (“Hudson”) appeals his conviction after a jury trial for Possession

of a Dangerous Material or Device by a Prisoner, as a Class C felony.1

           We affirm.

                                                     Issues

           Hudson raises two issues for our review:

             I.    Whether the trial court issued an erroneous jury instruction; and

            II.    Whether the trial court’s decision to sentence Hudson in absentia
                   violated Hudson’s right to be present during the penalty phase of his
                   trial.

                                      Facts and Procedural History

           On March 15, 2010, Hudson was an inmate serving a prison sentence at the Pendleton

Correctional Facility. That evening, Correctional Officer Blaine Hurt (“Officer Hurt”) was

running the “med line,” which was used to ensure medications were administered to inmates

at the facility. (Tr. at 37.) Hudson was among the inmates who were permitted out of their

cells as part of the med line procedure. Hudson did not line up with the other inmates;

Officer Hurt instead found Hudson talking to another prisoner in a cell some distance from

the med line.

           Officer Hurt thrice called Hudson over and asked what he was doing out of the line,

but Hudson did not comply. Officer Hurt then walked over to Hudson and asked what he

was doing. Hudson replied that he was talking to a friend. Officer Hurt then told Hudson to


1
    Ind. Code § 35-44-3-9.5 (recodified to I.C. § 35-44.1-3-7, effective Jul. 1, 2012).

                                                        2
turn around so that a pat-down could be conducted, and Hudson complied with the

instruction.

       Upon performing the pat-down, Officer Hurt felt a hard object in the front-left pocket

of Hudson’s gym shorts, which Hudson wore underneath his prison clothes. After placing

Hudson in restraints, Officer Hurt retrieved the hard object from Hudson’s gym shorts. The

object was a padlock attached to a strip of bed sheet that measured around three feet in

length. Recognizing this as an item used by prisoners only as a weapon, Officer Hurt seized

the lock. Hudson was then placed into a cell in a different part of the prison.

       On May 27, 2010, the State charged Hudson with Possession of a Dangerous Material

or Device by a Prisoner, as a Class C felony.

       A jury trial was conducted on January 24 and 25, 2012. Before the trial, the trial court

tendered proposed preliminary jury instructions to the parties; among these was an instruction

that set forth elements for the charged offense. The trial court used the language of Indiana

Pattern Jury Instruction 5.43 in the instruction; while the instruction used the language of the

statute for the charged offense, it also used some language that differed from the statutory

language. Hudson objected to the use of this changed language, specifically requesting that

the trial court strike the word “ordinarily” from certain portions of the instruction, but the

trial court overruled the objection. The challenged language was used in both the preliminary

and final instructions to the jury.

       At the trial’s conclusion on January 25, 2012, the jury found Hudson guilty as

charged. On February 17, 2012, Hudson filed a motion requesting that his sentencing


                                               3
hearing be conducted through video connection from prison rather than in-person; the trial

court granted this motion.

       On June 28, 2012, the trial court conducted a sentencing hearing. Hudson was present

at the prison, but refused to timely attend the hearing. The trial court therefore conducted the

hearing in Hudson’s absence, though Hudson’s trial counsel was present at the hearing. At

the hearing’s conclusion, the trial court entered judgment of conviction against him, and

sentenced him to seven years imprisonment to be served consecutive to his sentences in a

prior case.

       This appeal ensued.

                                   Discussion and Decision

                                        Jury Instruction

       Hudson challenges his conviction and contends that a jury instruction issued by the

trial court, which was included in both the preliminary and final instructions, was both

incorrect as a statement of the law and unsupported by the evidence presented during the

trial. Our standard of review in such cases is well settled:

       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. In reviewing a trial court’s
       decision to give a tendered jury instruction, we consider (1) whether the
       instruction correctly states the law, (2) is supported by the evidence in the
       record, and (3) is not covered in substance by other instructions. The trial
       court has discretion in instructing the jury, and we will reverse only when the
       instructions amount to an abuse of discretion. To constitute an abuse of
       discretion, the instructions given must be erroneous, and the instructions taken
       as a whole must misstate the law or otherwise mislead the jury. We will
       consider jury instructions as a whole and in reference to each other, not in
       isolation.

                                                4
Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v. State, 798

N.E.2d 895, 899-900 (Ind. Ct. App. 2003) (citations omitted)). Where an instruction is

erroneous, “we presume the error affected the verdict, and we will reverse the defendant’s

conviction ‘unless the verdict would have been the same under a proper instruction.’” Kane

v. State, 976 N.E.2d 1228, 1232 (Ind. 2012) (quoting LaPorte Cmty. Sch. Corp. v. Rosales,

963 N.E.2d 520, 525 (Ind. 2012)).

       The instruction, which Hudson challenged at trial and now challenges on appeal,

provided in relevant part:

             The crime of possession of dangerous material by an incarcerated
       person is defined by statute as follows:

       A person who knowingly or intentionally while incarcerated in a penal facility
       possesses a device, equipment, a chemical substance, or other material that is
       used or is intended to be used in a manner that is readily capable of causing
       bodily injury commits a class C felony.

       Before you convict the Defendant, the State must have proved each of the
       following beyond a reasonable doubt:

          1. The Defendant

          2. Knowingly or intentionally

          3. While incarcerated in a penal facility

          4. Possessed a device or material fashioned from a metal lock

          5. When the device or material was ordinarily used or ordinarily intended
             to be used in a manner readily capable of causing bodily injury.

(App. at 24, 44.) Hudson contends that this instruction—in particular, the use of the phrase

“ordinarily used or ordinarily intended to be used”—misstates the law when compared to the

statutory language that provides only that an item “is used or is intended to be used.”

                                             5
       Our courts have not yet determined whether the instruction the trial court issued,

which originates from Indiana Pattern Jury Instruction 5.43, is erroneous as a statement of the

law. The trial court observed that the language of the statute that defines the charged offense

here, Possession of Dangerous Material by an Incarcerated Person, closely tracks the

language used by the Indiana Code to define the term deadly weapon. The statutory

definition of deadly weapon provides, “‘deadly weapon’ means … (2) [a] destructive device,

weapon, device, taser … or electronic stun weapon, equipment, chemical substance, or other

material that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to

be used; is readily capable of causing serious bodily injury.” I.C. 35-31.5-2-86(a) (effective

Jul. 1, 2012, replacing then-effective I.C. § 35-41-1-8) (emphasis added). Based upon this

similarity, the trial court declined Hudson’s requests that it strike the word “ordinarily” from

the jury instructions.

       Inclusion of the word “ordinarily” in the instruction was an incorrect statement of law,

and thus the instruction was issued in error. Had the legislature intended for the State to

prove that an item meets the “ordinarily” requirement in order to convict an individual of

Possession of a Dangerous Material or Device by a Prisoner, as was intended with the deadly

weapon statute, the legislature clearly could have done so. See Brown v. State, 790 N.E.2d

1061, 1064 (Ind. Ct. App. 2003) (concluding that if the legislature had intended the State be

required to prove a gun was loaded to obtain a conviction for pointing a firearm, it “could

easily have done so by inserting the word ‘loaded’ into [the] statutory provision”). This is

evident given how closely the language of the Possession of a Dangerous Material or Device


                                               6
by a Prisoner statute tracks the language of the statutory definition of deadly weapon—to the

exclusion of the words “ordinarily” as in the deadly weapon statute. We thus cannot

conclude that the instruction was a correct statement of the law.

         But neither can we conclude that the trial court’s giving of the instruction amounts to

reversible error. The non-erroneous portion of the instruction the trial court issued to the jury

covers the substance of the statutory definition of the charged offense, since the instruction as

given first directly quotes the statutory language before setting out the portion under dispute.

And, if anything, the inclusion of “ordinarily” in the instruction favored Hudson over the

State.

         Moreover, the evidence adduced at trial properly supports issuing the non-erroneous

portion of the instruction. Multiple corrections officers testified that the device Officer Hurt

seized from Hudson—a padlock attached to around three feet of string or bed sheet—had no

purpose or use in their experience as corrections officers except to serve as a weapon, and

that its use as a weapon could result in injuries including lacerations, bruises, and orbital

fractures. Each of the officers denied that the device had any other use, including that of a

“cadillac,” which prisoners often use to transport items of personal property between prison

cells. (Tr. at 78-79.)

         While we conclude that the instruction as given was erroneous, we conclude that error

was harmless. Hudson advances no other argument in favor of setting aside his conviction,

and we accordingly affirm his conviction.




                                                7
                                         Sentencing

       Hudson also challenges the conduct of the sentencing proceedings, which took place

with Hudson in absentia.

       He asserts this was error, and directs our attention to Indiana Code section 35-38-1-4.

The statute provides, “[t]he defendant must be personally present at the time sentence is

pronounced. If the defendant is not personally present when sentence is to be pronounced,

the court may issue a warrant for his arrest.” I.C. § 35-38-1-4(a). A defendant’s right to be

present at sentencing arises under Indiana common law and statutory enactment, and is

separate from the constitutional or statutory right to be present at trial. Cleff v. State, 565

N.E.2d 1089, 1090-91 (Ind. Ct. App. 1991), trans. denied. “Our supreme court has held that

despite statutory and constitutional provisions which seemingly require the defendant’s

presence during criminal proceedings, those provisions may be waived ‘insofar as they are in

favor of the accused.’” Crank v. State, 502 N.E.2d 1355, 1358 (Ind. Ct. App. 1987) (quoting

Bullock v. State, 451 N.E.2d 646, 647 (Ind. 1983)), trans. denied. Where the record shows

that a defendant was aware of the date and time of his trial or sentencing, this court and our

supreme court have found no error in the sentencing of a defendant in absentia. Gillespie v.

State, 634 N.E.2d 862, 864 (Ind. Ct. App. 1994) (concluding that where the defendant “was

aware of the date and time of his trial” and failed to appear, the defendant had waived his

right to be present at sentencing), trans. denied.

       Here, Hudson acknowledges he was aware of the date of the sentencing hearing.

Rather, he argues that the trial court’s decision to proceed with sentencing after a delay of


                                              8
eleven minutes from the scheduled start of the hearing deprived him of his right under

Indiana law to be present for his sentencing when he “was simply late.” (Appellant’s App. at

10.) Hudson insists that his case is different from prior Indiana cases because he was present

at the prison where the video hearing would be held, and because he was not absent from the

jurisdiction and was present at trial. He argues that “[t]here is no evidence that Hudson did

not intend to attend the hearing or that he would have continued his ‘slow’ approach to the

hearing had he been advised that the sentencing would continue without his presence.”

(Appellant’s Br. at 10.)

       We do not agree. First, unlike other situations in which individuals are “simply late”

in arriving for hearings before trial courts, the evidence does not reflect that Hudson was

running behind schedule because of such things as traffic or a mechanical problem with a

vehicle. Rather, Sergeant Stanley Cooperrider (“Sergeant Cooperrider”), a correctional

officer, testified that though Hudson had been notified of the date and time of the hearing, he

was “not really in an enthusiastic mood about coming up here receiving sentence,” was

“passively resistant” to coming to the hearing, and “[y]ou will wait for him, Your Honor, is

his attitude.” (Tr. at 196-197.)

       Thus, though Hudson was informed at 2 p.m. to prepare to attend a 2:30 p.m. hearing,

he refused to comply with instructions from prison staff and, after a delay, the trial court

obtained an explanation from Sergeant Cooperrider for the delay, proceeded with the

sentencing hearing in Hudson’s absence, and obtained testimony from Sergeant Cooperrider

concerning Hudson’s conduct. Under the circumstances, we cannot conclude that the trial


                                              9
court erred when it conducted the sentencing hearing without Hudson’s presence. We

therefore affirm his sentence.

                                          Conclusion

       It was error, but harmless error, for the trial court to issue a jury instruction using the

term “ordinarily” in conjunction with the offense of Possession of a Dangerous Material or

Device by a Prisoner. The trial court did not err in sentencing Hudson in absentia.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                               10
