MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                     Mar 16 2020, 6:48 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
Daniel Hageman                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Ian McLean
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

Jamar Green,                                            March 16, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2056
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G21-1705-F4-17565



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020               Page 1 of 7
                                             Case Summary
[1]   Jamar Green appeals his conviction, following a jury trial, for level 4 felony

      unlawful possession of a firearm by a serious violent felon (“SVF”). He

      contends that the trial court committed fundamental error when instructing the

      jury. Concluding that Green has not met his burden to establish fundamental

      error, we affirm.


                                 Facts and Procedural History
[2]   On May 10, 2017, Indianapolis Metropolitan Police Department (“IMPD”)

      officers and emergency medical technicians (“the EMTs”) were dispatched to

      the parking lot of an apartment complex due to reports of a possible drug

      overdose. Upon arrival, the EMTs found a vehicle occupied by Green and two

      females, E.E. and A.P.; Green and E.E. were unconscious, and A.P. was

      semiconscious. The EMTs removed Green and E.E. from the vehicle and

      administered Narcan in an attempt to counteract the effects of the suspected

      overdoses. Shortly after the EMTs removed Green and E.E. from the car,

      IMPD Officers Jade Pierson and Larry Lanigan arrived on the scene. Officer

      Pierson spoke with A.P. while Officer Lanigan attempted to retrieve

      identification from Green and E.E. When Officer Lanigan approached Green,

      who was lying on the pavement next to the vehicle, he observed a knife in the

      waistband of Green’s pants. As Officer Lanigan was removing the knife from

      Green’s waistband, he also observed a silver semiautomatic handgun next to

      the knife in the waistband. Officer Lanigan also removed the handgun from

      Green’s waistband as a precaution before Green was placed in the ambulance

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020   Page 2 of 7
      to be transported to the hospital. The handgun was loaded and had a round in

      its chamber.


[3]   The State charged Green with level 4 felony unlawful possession of a firearm by

      an SVF. The State subsequently added a habitual offender sentence

      enhancement. Four days after Green was arrested, he called E.E. from the

      Marion County Jail. Green told E.E. that she needed to get in touch with A.P.

      and essentially get A.P. to claim that she “put the gun on him” because

      otherwise he would be “facing a lot, a lot, a lot of time.” State’s Ex. 5. Green

      explained that “she got to do that. Just tell her to get that permit real quick.”

      Id. E.E. assured Green, “I’m gonna tell her when I see her. I’m trying to get a

      hold of her b*tch ass.” Id. Green told E.E. to “try to make sure she come

      down here, man. Make sure she do that, okay?” Id.


[4]   In bifurcated proceedings, a jury found Green guilty of unlawful possession of a

      firearm. 1 Green then admitted to the habitual offender enhancement in

      exchange for a fixed term of six years executed on the enhancement, with

      placement left to the trial court’s discretion.


[5]   A sentencing hearing was held on August 2, 2019. The trial court sentenced

      Green to an aggregate term of fourteen years, with eight years executed in the




      1
       The parties stipulated that Green was an SVF pursuant to Indiana Code Section 35-47-4-5. Tr. Vol. 2 at 6,
      119, 166.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020                  Page 3 of 7
      Department of Correction, two years in community corrections, and four years

      suspended, two of which to be served on probation. This appeal ensued.


                                     Discussion and Decision
[6]   Green argues that the trial court erroneously instructed the jury regarding the

      definition of actual possession. We generally review a trial court’s jury

      instruction for an abuse of discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind.

      2012). However, Green concedes that he failed to object to the challenged jury

      instruction, and therefore he claims that the alleged error was fundamental.


[7]   The failure to object to a jury instruction results in waiver on appeal, unless

      giving the instruction was fundamental error. Barthalow v. State, 119 N.E.3d

      204, 211 (Ind. Ct. App. 2019). An error is fundamental if it clearly and

      blatantly violated basic principles of due process resulting in “undeniable and

      substantial potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind.

      2019) (citation omitted). In reviewing a particular jury instruction for

      fundamental error, we need not reverse unless the instructions as a whole—the

      jury charge—misled the jury on the applicable law. Id. Fundamental error is

      an “extremely narrow exception to the waiver rule,” and a defendant “bears the

      heavy burden of showing that a fair trial was impossible.” Harris v. State, 76

      N.E.3d 137, 139 (Ind. 2017).


[8]   Here, the trial court gave the jury a preliminary instruction regarding actual

      possession that provided as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020   Page 4 of 7
              The word “possess” means to own or exert control over.

              A person who knowingly has direct physical contact of a thing at
              a given time is then in actual possession of it.


      Appellant’s App. Vol. 2 at 129 (emphasis added). Indiana Pattern Criminal

      Jury Instruction 14.306 follows this language, but instead of “contact,” the

      word “control” is used. Green argues that this deviation resulted in an

      incorrect statement of law that was fundamentally erroneous. We disagree.


[9]   As noted above, we look to each jury instruction in context and, pursuant to the

      fundamental error standard of review, we need not reverse unless the

      instructions as a whole misled the jury on the applicable law. Batchelor, 119

      N.E.3d at 559. Here, the jury was twice instructed that the State was required

      to prove that Green knowingly or intentionally possessed a firearm, Appellant’s

      App. Vol. 2 at 137, and the jury was further properly instructed that to

      “possess” something “means to own or exert control over.” Id. at 129; IND.

      PATTERN CRIMINAL JURY INSTRUCTION 14.306. Although Green argues that

      the erroneous use of the word “contact” in the challenged instruction’s

      definition of actual possession invited the jury to focus solely on the fact of

      physical contact rather than on actual physical control, the jury was specifically

      instructed to “consider all the instructions together. Do not single out any

      certain sentence or any individual point or instruction and ignore the others.”

      Appellant’s App. Vol. 2 at 124.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020   Page 5 of 7
[10]   Significantly, the jury was instructed to consider and construe the instructions

       in the context of “all the evidence admitted during the trial[.]” Id. at 147. The

       central evidentiary dispute during trial was not whether Green exerted physical

       control over the handgun; it was whether he had done so knowingly or

       intentionally. Indeed, Green’s counsel conceded during both opening and

       closing statements that “possession” was “not an issue.” Tr. Vol. 2 at 96, 140.

       Green conceded that he technically had both physical contact and control over

       the gun found on his person but postulated that A.P., E.E., or some random

       bystander had placed the gun in his waistband while he was unconscious.

       Moreover, during deliberations, the jury requested to see any available camera

       footage of the events as well as to rehear Green’s jailhouse phone call with

       E.E., clearly indicating that the jury was focusing on the credibility of Green’s

       theory that he unknowingly or unintentionally possessed the gun. We agree

       with the State that the “fact that the gun was touching [Green’s] body was, in

       terms of the particular facts of the case, neither here nor there.” Appellee’s Br.

       at 14. Under the circumstances, we conclude that the instructions as a whole—

       the jury charge—did not mislead the jury on the applicable law.


[11]   Because Green has not met his burden to establish that the trial court’s

       instruction of the jury made a fair trial impossible or clearly and blatantly

       violated basic principles of due process resulting in undeniable and substantial

       potential for harm, we find no fundamental error. Accordingly, we affirm his

       conviction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020   Page 6 of 7
[12]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020   Page 7 of 7
