                                                                                FILED
                                                                            Oct 05 2017, 8:44 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                        Curtis T. Hill, Jr.
      Anderson, Indiana                                          Attorney General of Indiana

                                                                 Justin F. Roebel
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Marquell M. Jackson,                                       October 5, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 82A04-1609-CR-2074
              v.                                                 Appeal from the Vanderburgh
                                                                 Circuit Court
      State of Indiana,                                          The Honorable Kelli E. Fink,
      Appellee-Plaintiff.                                        Magistrate
                                                                 Trial Court Cause No.
                                                                 82C01-1510-F1-6686



      Najam, Judge.


                                        Statement of the Case
[1]   Marquell M. Jackson appeals his convictions and sentence, following a jury

      trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony;

      four counts of attempted robbery, as Level 3 felonies; two counts of aggravated
      Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                    Page 1 of 22
      battery, as Level 3 felonies; and for being found to have been a member of a

      criminal gang, a sentencing enhancement. Jackson raises seven issues for our

      review, but we address only the following five issues:


              1.       Whether the trial court committed fundamental error
                       when it permitted the State to amend the charge for the
                       criminal gang enhancement such that the charge no longer
                       stated a cognizable offense.


              2.       Whether two of Jackson’s convictions violated
                       Indiana’s prohibitions against double jeopardy.


              3.       Whether the trial court abused its discretion when it
                       admitted into evidence phone calls Jackson had made
                       from jail.


              4.       Whether the trial court committed fundamental error
                       when it instructed the jury on accomplice liability.


              5.       Whether the State presented sufficient evidence to support
                       Jackson’s conviction for burglary, as a Level 1 felony.


[2]   We hold that the trial court committed fundamental error when it permitted the

      State to amend the charge on the criminal gang enhancement such that the

      charge no longer stated an offense under Indiana law. We also hold that two of

      Jackson’s convictions violate Indiana’s prohibitions against double jeopardy

      because they were enhanced by the same bodily injury as Jackson’s conviction

      for burglary, as a Level 1 felony. In light of those holdings, we reverse

      Jackson’s criminal gang enhancement and remand with instructions for the trial


      Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 2 of 22
      court to vacate that enhancement. We also reverse the two of Jackson’s

      convictions that are based on the same bodily injury as his conviction for

      burglary, as a Level 1 felony, and we remand with instructions for the court to

      enter judgment of conviction on lesser-included offenses on those counts. And

      we instruct the court to resentence Jackson in accordance with this opinion.1

      On the remaining issues, we affirm.


                                  Facts and Procedural History
[3]   In October of 2015, Jeremy Herbert lived in a second-floor apartment above the

      711 Tavern in Evansville. Herbert’s apartment was one of two second-floor

      apartments above the 711 Tavern; one could access those two apartments from

      the street by gaining entry through an exterior door that Herbert could remotely

      open. Herbert also had video surveillance on that door. Once through that

      door, visitors would go upstairs to a hallway common to both apartments. One

      apartment had a door off the hallway; Herbert’s apartment had a doorframe in

      which he had hung a sheet to “act as the doorway.” Tr. Vol. IV at 153. Logan

      Orth stayed intermittently at Herbert’s apartment and sold marijuana out of the

      apartment.


[4]   On October 25, Jackson and his friend, Diego Thomas, learned that Orth had

      one-half pound of marijuana in Herbert’s apartment. Jackson and Thomas

      decided that they would go to Herbert’s apartment “[t]o rob them” of that



      1
        In light of our holdings, we do not address Jackson’s argument under Indiana Appellate Rule 7(B) or his
      other arguments under the criminal gang enhancement.

      Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                      Page 3 of 22
      marijuana. Id. at 9. However, upon approaching the exterior door, they “saw

      [the] camera above the door” and abandoned their plan. Id.


[5]   The next day, Jackson and Thomas again decided to rob Orth at Herbert’s

      apartment. This time, Jackson and Thomas obtained the assistance of Jarvice

      Sears, Corey Cain, and O’Neill Bruin to help them carry out their plan. The

      five confederates acquired two firearms and some face masks to use in the

      commission of the invasion. They agreed to equally split any marijuana and

      money they seized from Orth.


[6]   Shortly before 9:00 p.m., the group approached the exterior door to Herbert’s

      apartment and observed the surveillance camera. They then “debate[d]”

      among themselves “whether . . . [to] keep on going . . . or just leave.” Id. at 17.

      Jackson advocated for continuing forward, and, after about five minutes of

      discussion, the cohort agreed. Thomas then “pulled the camera out [of] the

      wall,” the five men went through the exterior door,2 they “pulled back” the

      sheet to Herbert’s apartment, and they entered the apartment. Id. at 18-19.


[7]   At that time, about ten people, including Orth and Herbert, were inside the

      apartment “smoking blunts.” Id. at 156. The five intruders demanded the

      occupants’ marijuana and money. Sears pulled out a firearm. Jackson told the

      occupants that Sears “ain’t playing with you all.” Id. at 25. Nonetheless, Orth

      also pulled out a firearm, and a gunfight ensued. Sears shot Orth twice and



      2
          The exterior door was unlocked at the time.

      Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 4 of 22
       Orth shot Sears once. The confederates then fled the apartment. On the way

       out, Cameron Kendall, a resident in the other upstairs apartment, came into the

       hallway. Sears shot Kendall in the stomach. Kendall, a former sniper for the

       United States Army, returned fire at the confederates, striking Sears once,

       Thomas once, and Bruin twice.


[8]    Jackson and his cohort made their way outside, but Sears collapsed shortly after

       and Thomas remained with him until police arrived. The other three eventually

       drove to a hospital and were arrested thereafter. No one died from the

       gunfight.


[9]    While in prison, Jackson made several phone calls that the State recorded. The

       State advised Jackson prior to the phone calls that it would record them and

       that they could be used against him at trial. Undeterred, in one call Jackson

       stated that “[t]he only thing they could stick on me is that burglary. Now, I can

       get that dropped down to where I can go to the Safe House and get House

       Arrest, so I’ll plead out to that . . . .” Tr. Vol. III at 108. In another call,

       Jackson again commented that he could be convicted of burglary. Following

       several inaudible comments relating to his alleged participation in the events at

       the apartment, Jackson then stated that “[w]hen everything started happening I

       ran because I didn’t know, I knew but I didn’t know, so when I seen what I

       didn’t know, then I ran.” Id. at 111.


[10]   The State charged Jackson with sixteen offenses and a criminal gang

       enhancement. The State’s original charge of the criminal gang enhancement


       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017    Page 5 of 22
       tracked the language of Indiana Code Section 35-50-2-15(b) (2015) and stated,

       in relevant part, that, “on October 26, 2015, [Jackson] knowingly or

       intentionally was a member of a criminal gang while committing the underlying

       offense.” Appellant’s App. Vol. II at 56. However, three days before Jackson’s

       trial, the State amended that language to instead allege that Jackson “was a

       known member of a criminal gang[] while committing the underlying felony

       offense.” Id. at 97. Jackson did not object to the State’s amendment of the

       charging information on the criminal gang enhancement.


[11]   The trial court ordered Jackson’s ensuing jury trial to be bifurcated between the

       substantive offenses and the criminal gang enhancement. During the first

       phase, numerous witnesses, including some of his confederates, testified and

       described the events of October 26, 2015. The State also introduced, over his

       objections, Jackson’s jailhouse phone calls as described above. The jury found

       Jackson guilty as charged.


[12]   Jackson’s jury trial then proceeded to the second phase on the criminal gang

       enhancement allegation. In his introductory remarks to the jury at the start of

       that proceeding, Jackson’s attorney stated:


               I’ll keep it straight to the point on this one. The Court’s
               instruction number 2 says that the State has alleged that Mr.
               Jackson was a known member of a gang while committing the
               underlying felony offenses and, not or, and Mr. Jackson
               committed the felony offenses at the direction of or in affiliation
               with a criminal gang. Number 1 was a known member. Number 2,
               at the direction or an affiliation. Keep those two factors in mind


       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 6 of 22
        when you listen to the evidence. I don’t think it will be sufficient to
        convince you beyond a reasonable doubt . . . .


Tr. Vol. V at 164-65 (emphases added). The State then called Thomas as a

witness, and he redescribed the events of October 26, 2015. In a short cross-

examination, Jackson’s attorney questioned Thomas as follows:


        Q     . . . you[’d] consider yourself a friend of [Jackson’s]
        wouldn’t you?


        A        Yes.


        Q        How long have you all been friends?


        A        Five or six years.


        Q        Mr. Jackson, he’s not a known member of a gang is he?


        A        No, he is not.


Id. at 178. The State then called Evansville Police Department Detective Keith

Whitler, who investigated the October 26, 2015, incident. He stated that

Jackson and his cohort acted together in the commission of those offenses, but

he did not testify to any prior known gang involvement by Jackson. Finally,

the State called Bruin. Bruin, like Thomas, described the events of October 26,

2015. The totality of Bruin’s cross-examination is as follows:


        Q     Mr. Bruin, how long have you been, well are you friends
        with Marquell Jackson?


Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017        Page 7 of 22
               A        Yes.


               Q        How long have you been friends with him?


               A        Going on like 7 years.


               Q        Do you know Mr. Jackson to be a member of a gang?


               A        No.


               Q         . . . did he act at your direction?


               A        What do you mean by act?


               Q        Did you make him do anything?


               A        No.


       Id. at 189.


[13]   The court gave the jury four instructions on the criminal gang enhancement.

       The court’s instruction number two recited the State’s charging information,

       namely, that Jackson “was a known member of a gang while committing the

       underlying felony offenses . . . .” Appellant’s App. Vol. III at 57. However, the

       court’s instruction number three informed the jury that, to find Jackson guilty

       under the enhancement, the jury had to find that he “knowingly or intentionally

       was a member of a criminal gang while committing the offense . . . .” Id. The

       jury found Jackson guilty on the enhancement.


       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 8 of 22
[14]   Thereafter, the trial court entered its judgment of conviction against Jackson for

       burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four

       counts of attempted robbery, as Level 3 felonies; two counts of aggravated

       battery, as Level 3 felonies; and for being a member of a criminal gang. The

       court ordered Jackson to serve thirty years for burglary, as a Level 1 felony,

       enhanced by an additional thirty years for being a member of a criminal gang.

       The court ordered Jackson’s other sentences to run concurrent with those sixty

       years. This appeal ensued.


                                       Discussion and Decision
                 Issue One: The Amended Criminal Gang Enhancement Charge

[15]   We first address Jackson’s argument on appeal that the trial court committed

       fundamental error when it permitted the State to amend the criminal gang

       enhancement allegation. Fundamental error “is a substantial, blatant violation

       of due process” that “must be so prejudicial to the rights of a defendant as to

       make a fair trial impossible.” Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015)

       (citations omitted).


[16]   The State’s original charge of the criminal gang enhancement tracked the

       statutory language and stated in relevant part that, “on October 26, 2015,

       [Jackson] knowingly or intentionally was a member of a criminal gang while

       committing the underlying offense.” Appellant’s App. Vol. II at 56; see I.C. §

       35-50-2-15(b)(1). However, nearly seven months later and three days before

       Jackson’s trial, the State amended that language to instead allege that Jackson


       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 9 of 22
       “was a known member of a criminal gang[] while committing the underlying

       felony offense.” Id. at 97.


[17]   The language of the amended charge does not track and is not consistent with

       the language of the statute. See I.C. § 35-50-2-15(b)(1). In particular, the

       amended charge omits a material element from the statute, namely, the mens

       rea. And the amended charge adds an element that is not within the statute,

       namely, that Jackson was “a known member” of a criminal gang. Appellant’s

       App. Vol. II at 97.


[18]   As a result of those changes, the amended charge is substantially different from

       the statutory language and carries a wholly different meaning. For example,

       under the language of the State’s amended charge, the State needed only to

       show that someone3 believed Jackson to be a member of a criminal gang. But

       the Indiana Code demands that Jackson knowingly or intentionally was a member

       of a gang. I.C. § 35-50-2-15(b)(1).4 Thus, it is not enough under the statute that

       some third parties might have believed Jackson to be a member of a gang;

       Jackson’s membership must have been real and the result of his knowing or

       intentional conduct. In other words, being a known member of a gang is not

       equivalent to knowingly or intentionally being a member of a gang. The




       3
         While Indiana Code Section 35-50-2-15(g) provides a limited description of some evidence the State may
       use to demonstrate membership in a criminal gang, that statute is not exhaustive.
       4
         A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious
       objective to do so. I.C. § 35-41-2-2(a). And a person engages in conduct “knowingly” if, when he engages in
       the conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b).

       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                    Page 10 of 22
       amended charge did not state an allegation under the criminal gang

       enhancement statute.


[19]   The Indiana Supreme Court has long recognized that a “[c]onviction [for] a

       non-existent crime is fundamental error” and “a nullity.” Moon v. State, 267

       Ind. 27, 366 N.E.2d 1168, 1168-69 (1977). Indeed, as our Supreme Court has

       made clear, a conviction where “[t]here is no such offense” in the Indiana Code

       “does not follow any legal authority” and “offends our concepts of criminal

       justice.” Young v. State, 249 Ind. 286, 231 N.E.2d 797, 799 (1967). It is the

       province of our legislature to define crimes and penalties. Ind. Const. art. 4 §§

       22-23. It is not too much to ask the State not to improvise but to charge

       defendants only with crimes as defined by our legislature.


[20]   Further, “it is well-established that due process requires that a defendant be

       given notice of the crime or crimes with which he is charged so that he can

       prepare his defense. Absent sufficient notice that a particular offense is

       charged, a defendant cannot be convicted of that crime.” Thompson v. State, 761

       N.E.2d 467, 470 (Ind. Ct. App. 2002) (quotation marks omitted). Likewise, as

       Justice Massa wrote for our Supreme Court, it is a fundamental principle that

       “people have a right to fair warning of the criminal penalties that may result

       from their conduct.” Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016). And the

       charging information must be sufficiently specific to ensure that the defendant

       will not twice be put in jeopardy for the same act. Blackburn v. State, 260 Ind. 5,

       291 N.E.2d 686, 690 (1973).



       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 11 of 22
[21]   The State asserts that Jackson’s challenge is merely to the sufficiency of the

       charging information. The Indiana Supreme Court has held that no

       fundamental error exists when a charge erroneously states the mens rea as

       “knowingly” rather than “intentionally” when specific intent is required.

       Burgess v. State, 461 N.E.2d 1094, 1097-98 (Ind. 1984). Our Supreme Court has

       also held that, when a charging information erroneously titles the alleged

       offense using a label for an offense that does not exist, the charging information

       by itself does not demonstrate reversible error if the substantive allegation in the

       charge puts the defendant on notice that the State is actually charging an

       existing offense. Head v. State, 443 N.E.2d 44, 51 (Ind. 1982). But the State’s

       amended charge here does not merely misstate the mens rea or mistitle the

       offense.


[22]   Rather, while the amended charge here states the correct name for the charge

       and provides the correct legal citation, as explained above in substance the

       charge alleges an act that does not constitute a criminal gang enhancement as

       defined in the Indiana Code. And we have long held that it is typically “the

       text of the charging information,” as opposed to its title, “[t]hat constitutes the

       offenses with which [a defendant] was charged and convicted.” Funk v. State,

       714 N.E.2d 746, 750 (Ind. Ct. App. 1999), trans. denied; see also Head, 443

       N.E.2d at 51. We have also repeatedly concluded that the complete omission

       of a material element of an offense, such as the mens rea, is fundamental error

       when that omission fails to give the defendant notice of the elements of the

       offense and makes him unable to adequately prepare his defense. E.g.,


       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 12 of 22
       Thompson, 761 N.E.2d at 470; Downey v. State, 726 N.E.2d 794, 799 (Ind. Ct.

       App. 2000), trans. denied; Phillips v. State, 518 N.E.2d 1129, 1131-32 (Ind. Ct.

       App. 1988); see also Blackburn, 291 N.E.2d at 690 (stating that “certain details

       may be omitted” from the charging information so long as there is “sufficient

       information to enable [the defendant] to prepare his defense and to assure that

       he will not twice be put in jeopardy for the same crime”). Here, the substance

       of the charging information failed to state an offense and completely omitted

       the mens rea. Thus, with its amended charge, the State put Jackson on notice

       that he was being charged with a nonexistent offense.


[23]   Further, the fundamental nature of the erroneously amended charge had a

       direct impact throughout the trial proceedings that followed. During the second

       phase of his jury trial, Jackson’s counsel repeatedly emphasized in his

       arguments to the jury and in his cross-examination of the witnesses the part of

       the amended charge that was added by the State in error—namely, whether

       Jackson was “a known member” of a gang. Tr. Vol. V at 164-65, 178, 189.5 In

       other words, the State’s error required Jackson to prepare his defense to attack

       irrelevant facts rather than relevant facts. Also, two of the trial court’s four

       instructions to the jury at the conclusion of the second phase were

       incompatible: in instruction two, the court informed the jury of the language of



       5
         The parties dispute on appeal whether the timing of the amendment enabled Jackson to adequately prepare
       his defense. But, while the record is clear that Jackson’s counsel had a defense to the amended charge
       prepared, the record is equally clear that that defense was focused almost exclusively on the erroneous
       language of the amended charge. Insofar as the State suggests on appeal that the original charge properly
       followed the statutory language and therefore precludes a finding of fundamental error, we reject the State’s
       argument in light of the record on appeal.

       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                      Page 13 of 22
       the State’s erroneously amended charge; in instruction three, the court informed

       the jury of the proper statutory language, which included the mens rea omitted

       by the State from its amended charge.


[24]   Again, “[t]he purpose of an information is to advise the defendant of the

       particular crime charged so that he can prepare a defense.” McGee v. State, 495

       N.E.2d 537, 538 (Ind. 1986). That purpose cannot be fulfilled where, as our

       Supreme Court said in Tyson, there is no “fair warning” that the conduct

       complained of by the State in its information is an offense. 51 N.E.3d at 92.

       That purpose also cannot be fulfilled where, as here, the State at trial presents

       evidence of an act other than that charged. E.g., Young v. State, 30 N.E.3d 719,

       726-28 (Ind. 2015).


[25]   In addition, the amended charge does not adequately protect Jackson from

       double jeopardy. It is not clear from the record whether the State punished

       Jackson for having merely been “a known member” of a gang (as alleged in the

       amended charge and actually defended against) or for “knowingly or

       intentionally” being a gang member during the instant offenses (as originally

       charged and actually tried by the State). Accordingly, the amended charge “did

       not adequately describe the charge so that [Jackson] could plead this present

       conviction should he subsequently be charged with” the same act. Griffin v.

       State, 439 N.E.2d 160, 161-62 (Ind. 1982). Thus, the amended charge is

       inadequate to protect Jackson from double jeopardy.




       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 14 of 22
[26]   The amended charge for the criminal gang enhancement is fundamentally

       erroneous on this record for another reason. Even if it were acceptable for the

       State to hold someone to trial for a nonexistent offense, Chief Justice Rush has

       explained for our Supreme Court that it violates a defendant’s fundamental

       right to due process to allow the State to charge an offense on a specified set of

       facts, have the defendant rely on the language of that charge to prepare his

       defense, and then allow the State to present evidence of a different offense—

       including an otherwise inherently included lesser offense—to support the

       charge. Young, 30 N.E.3d at 726-28.


[27]   Here, there is no question that the State expressly based its charge on Jackson

       being “a known member” of a criminal gang. Like the defendant in Young,

       Jackson “frame[d his] defense” solely in terms of that language “to the

       exclusion of any other” defense. Id. Yet, during trial, the State wholly failed to

       produce any evidence that Jackson was “a known member” of a criminal gang,

       as Jackson emphasized in his arguments to the jury and in his cross-

       examination of the witnesses. As our Supreme Court made clear in Young, the

       State cannot engage in such an evidentiary bait-and-switch. Id. Thus, even if

       the State were permitted to charge the criminal gang enhancement as amended,

       the State did not present evidence to support the allegation that Jackson was “a

       known member” of a criminal gang, and reversal is required. Id.


[28]   In sum, the amended charge was a misdirection. The trial court committed

       fundamental error when it permitted the State to amend the criminal gang

       enhancement allegation to charge the defendant with being “a known member”

       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 15 of 22
       of a criminal gang. In its operation and effect, the amended charge poisoned

       the well as it skewed the evidence and argument and caused the defendant to be

       tried for and defend against an offense that does not exist under the statute. We

       reverse Jackson’s enhancement and remand with instructions that the court

       vacate the enhancement and the sentence imposed on it.


                                        Issue Two: Double Jeopardy

[29]   Jackson also asserts that the trial court violated his right to be free from double

       jeopardy when it entered its judgment of conviction on burglary, as a Level 1

       felony; robbery, as a Level 2 felony (as alleged in Count 3); and aggravated

       battery, as a Level 3 felony (as alleged in Count 8), because each of those three

       offenses was enhanced based on the same serious bodily injury to Orth. The

       State acknowledges that the enhanced robbery and aggravated battery offenses

       “may violate principles of double jeopardy.” Appellee’s Br. at 27.


[30]   We agree. The Indiana Supreme Court has long recognized that multiple

       offenses may not be enhanced based on the same bodily injury. Pierce v. State,

       761 N.E.2d 826, 830 (Ind. 2002). In such circumstances, entry of judgment on

       the base-level offense for those offenses with the less severe penal consequences

       is the appropriate remedy. See Street v. State, 30 N.E.3d 41, 48-49 (Ind. Ct. App.

       2015), trans. denied. Accordingly, we reverse Jackson’s convictions under Count

       3 for robbery, as a Level 2 felony, and under Count 8 for aggravated battery, as

       a Level 3 felony. We remand to the trial court with instructions that it instead

       enter judgment of conviction for the lesser-included offenses of, respectively,

       robbery, as a Level 5 felony, and battery, as a Class B misdemeanor. See I.C. §§
       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 16 of 22
       35-42-5-1(a) (base-level offense of robbery); 35-42-2-1(c) (base-level offense of

       battery).


                                  Issue Three: Admission of Phone Calls

[31]   We next consider Jackson’s argument that the trial court abused its discretion

       when it admitted excerpts from the two phone calls he had made from prison

       into evidence. The trial court has “inherent discretionary power on the

       admission of evidence, and its decisions are reviewed only for an abuse of that

       discretion.” McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004) (internal

       quotation marks omitted). An abuse of discretion occurs when the trial court’s

       judgment “is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights.” Guilmette v. State, 14 N.E.3d

       38, 40 (Ind. 2014).


[32]   According to Jackson, the trial court abused its discretion when it admitted

       those excerpts because they “concerned inadmissible plea negotiations and

       w[ere] highly misleading and prejudicial.” Appellant’s Br. at 20. But we agree

       with the State that, his bald assertions aside, Jackson has made no showing that

       his statements had any relationship to any plea negotiations. Moreover,

       Jackson was advised prior to his phone calls that they could be recorded and

       used against him at trial, and he does not suggest on appeal that his admissions

       following that advisement were not made voluntarily, knowingly, or

       intelligently. See Baer v. State, 866 N.E.2d 752, 762 (Ind. 2007).




       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 17 of 22
[33]   We also reject Jackson’s assertions that the excerpts were irrelevant,

       misleading, and highly prejudicial. First, Jackson did not preserve for appellate

       review his argument that the excerpts were irrelevant, see Tr. Vol. III at 73, and,

       as such, we do not consider that argument. Second, the trial court has broad

       discretion to determine whether the probative value of relevant evidence is

       substantially outweighed by the danger of unfair prejudice. Snow v. State, 77

       N.E.3d 173, 177, 179 (Ind. 2017). The unfair prejudice, if any, from Jackson’s

       own admissions “was not so high that it overrode the trial court’s wide

       discretion.” Id. at 179. Accordingly, the trial court did not abuse its discretion

       in the admission of the excerpts from the jailhouse phone calls.


                        Issue Four: Jury Instruction on Accomplice Liability

[34]   Jackson asserts that the trial court committed fundamental error when it

       instructed the jury on accomplice liability. As the Indiana Supreme Court has

       explained:


               As “[t]he manner of instructing a jury lies largely within the
               discretion of the trial court,” this Court reverses a trial court’s
               jury instruction “only for an abuse of discretion.” But because
               [the appellant] did not object to the accomplice liability
               instruction given by the trial court or tender his own accomplice
               liability instruction, he waived his right to appeal the instruction
               provided to the jury. Consequently, we “will only reverse the
               trial court if the trial court committed error that was
               fundamental,” in instructing the jury on the elements of
               accomplice liability when attempted murder is charged.
               Fundamental error “is a substantial, blatant violation of due
               process” that “must be so prejudicial to the rights of a defendant
               as to make a fair trial impossible.”

       Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 18 of 22
       Rosales, 23 N.E.3d at 11 (citations omitted; first brackets original to Rosales).


[35]   The trial court instructed the jury on accomplice liability as follows:


               A person who knowingly or intentionally aids another in
               committing a crime is guilty of that crime. In order to commit a
               crime of aiding, a person must have knowledge that he is aiding
               the commission of the crime. 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. Mere presence alone is not
               sufficient to prove the Defendant aided the crime. Failure to
               oppose the commission of the crime alone is also insufficient to
               prove that the Defendant aided the crime. However, presence at
               the scene of the crime and failure to oppose the crime’s
               commission are factors which may be considered in determining
               whether there was aiding another to commit the crime. Before
               you can convict the Defendant as an accessory the State must
               prove the elements of the crime and that the Defendant
               knowingly or intentionally aided another to commit the crime
               beyond a reasonable doubt.


       Appellant’s App. Vol. III at 31.


[36]   On appeal, Jackson asserts that that instruction was erroneous because it

       “relieved the State of its burden of proving that Marquell participated in the

       underlying offenses . . . .” Appellant’s Br. at 27. In support of that assertion,

       Jackson contends that we have previously held a substantially similar

       instruction “to be erroneous.” Id. (citing Hawn v. State, 565 N.E.2d 362, 366

       (Ind. Ct. App. 1991)). But Hawn has no such holding. Rather, after quoting the

       instruction in that case, we stated:




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                appellant argues that the following sentence was erroneous: “He
                does not have to personally participate in the crime nor does he
                have to be present when the crime is committed.” Our courts
                have repeatedly held that an accessory’s presence at the scene of
                the crime is not necessary and that the evidence need not show
                that the accessory personally participated in the commission of
                each element of the crime. Johnson v. State (1981), Ind. App., 423
                N.E.2d 623, 627. Although the State’s instruction does not
                qualify the participation language, any error was harmless due to
                the strong evidence of appellant’s guilt. Hurt v. State (1990), Ind.
                App., 553 N.E.2d 1243, 1249.


       Hawn, 565 N.E.2d at 366. At best, that language says that the instruction could

       have been more clear. But it does not say that the instruction was erroneous,

       and it certainly does not suggest that any such error necessarily rises to the level

       of fundamental error. Indeed, our case law is clear that instructions

       substantially similar to Jackson’s are adequate instructions. E.g., Boney v. State,

       880 N.E.2d 279, 293-94 (Ind. Ct. App. 2008), trans. denied. We reject Jackson’s

       challenge to the accomplice liability instruction.6


                                Issue Five: Sufficient Evidence of Burglary

[37]   Last, Jackson asserts that the State failed to present sufficient evidence to

       support his conviction for burglary, as a Level 1 felony. Our standard of review

       is clear: in reviewing such claims, we will consider only the evidence most

       favorable to the verdict and the reasonable inferences to be drawn therefrom.



       6
         Jackson’s citations to Fowler v. State, 900 N.E.2d 770, 774 (Ind. Ct. App. 2009), and Peterson v. State, 699
       N.E.2d 701, 706 (Ind. Ct. App. 1998), are not supported by cogent argument, and we do not consider them.
       See Ind. Appellate Rule 46(A)(8)(a).

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       Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm the conviction

       if there is probative evidence from which a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Id. We will neither reweigh

       the evidence nor reassess the credibility of witnesses. Id.


[38]   To show that Jackson committed burglary, as a Level 1 felony, the State was

       required to prove beyond a reasonable doubt that Jackson broke and entered the

       building or structure of another person with the intent to commit a felony

       therein, and that Jackson’s act resulted in serious bodily injury to another. I.C.

       § 35-43-2-1. On appeal, Jackson asserts only that the State failed to present

       sufficient evidence that he broke into Herbert’s apartment.


[39]   “[I]n Indiana, a ‘breaking’ is proved by showing that even the slightest force

       was used to gain unauthorized entry.” State v. Hancock, 65 N.E.3d 585, 591

       (Ind. 2016) (quotation marks omitted). Here, a member of Jackson’s cohort

       moved the sheet that Herbert had hung in his doorway, and which acted as a

       door to his apartment, in order to gain unauthorized entry into Herbert’s

       apartment. That, as a matter of law, is sufficient to show a “breaking” for

       purposes of the burglary statute. See id.; see also Meehan v. State, 7 N.E.3d 255,

       258-59 (Ind. 2014).


[40]   Still, Jackson contends that moving a sheet hung in a doorway is not sufficient

       because a sheet is not a “structural impediment.” Appellant’s Br. at 33 (citing

       Creasy v. State, 518 N.E.2d 785, 786 (Ind. 1988)). But we do not read Creasy to

       demand something more substantial than Herbert’s sheet. Indeed, in Hancock,


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       the Indiana Supreme Court cited with approval an opinion of this court in

       which we had held that “rush[ing] past a victim to gain entry” sufficed to show

       a breaking. 65 N.E.3d at 591 (citing Anderson v. State, 37 N.E.3d 972, 974-75

       (Ind. Ct. App. 2015)). Our Supreme Court also stated that “it is not necessary

       to show forcible entry, only that some physical act was used to gain entry.” Id.

       (quoting McCormick v. State, 178 Ind. App. 206, 382 N.E.3d 172, 174 (1978)).

       Moving the sheet was a physical act used to gain entry. Accordingly, the State

       presented sufficient evidence to show that Jackson broke into Herbert’s

       apartment when a member of Jackson’s cohort physically moved the sheet in

       Herbert’s doorway to gain entry.


                                                     Conclusion

[41]   In sum, we reverse Jackson’s criminal gang enhancement and his convictions

       under Count 3 and Count 8. We remand with instructions that the trial court

       vacate the criminal gang enhancement and enter judgment of conviction under

       Count 3 for robbery, as a Level 5 felony, and under Count 8 for battery, as a

       Class B misdemeanor. We also instruct the trial court to resentence Jackson in

       accordance with this opinion. On all other issues, we affirm.


[42]   Affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




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