      MEMORANDUM DECISION
                                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D),                                                  Apr 19 2016, 6:16 am
      this Memorandum Decision shall not be
                                                                                                  CLERK
      regarded as precedent or cited before any                                               Indiana Supreme Court
                                                                                                 Court of Appeals
      court except for the purpose of establishing                                                 and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Peter D. Todd                                            Gregory F. Zoeller
      Elkhart, Indiana                                         Attorney General of Indiana
                                                               Chandra K. Hein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Darius L. Crockett,                                      April 19, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A03-1509-CR-1282
              v.                                               Appeal from the
                                                               Elkhart Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Evan S. Roberts, Judge
                                                               Trial Court Cause No.
                                                               20D01-1406-FD-693



      Kirsch, Judge.


[1]   Following a jury trial, Darius L. Crockett (“Crockett”) was convicted of Class

      D felony domestic battery in the presence of a child less than sixteen years of


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016              Page 1 of 7
      age1 and Class D felony theft.2 He appeals and raises the following restated

      issue: whether the trial court properly instructed the jury.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In November 2013, Crockett was living with his then-girlfriend (“Girlfriend”)

      and her two young children. He punched Girlfriend in the face in the presence

      of her children, and he shoved her to the ground and pinned her there, with her

      one-year-old child underneath her. Crockett thereafter threatened Girlfriend

      with a steak knife, and before leaving the premises, he took Girlfriend’s keys

      and cell phone from her. In June 2014, the State charged him with one count of

      Class D felony domestic battery and one count of Class D felony theft.


[4]   A jury trial was conducted. The record before us reflects that, on the morning

      of the second day of trial, counsel for both parties met with the trial court in

      chambers “to begin work on the final instructions.” Tr. at 300. Once back on

      the record, the trial court summarized what had transpired and, as is relevant

      here, stated:

                 The Court has granted the defendant’s request, without
                 objection, as to providing the jury necessary lesser included



      1
        See Ind. Code § 35-42-2-1.3(a)(2), (b)(2). We note that the statutes under which Crockett was charged were
      amended effective July 1, 2014. However, he committed his offenses in November 2013, and we apply the
      statutes in effect at that time.
      2
          See Ind. Code § 35-43-4-2(a).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016             Page 2 of 7
              offenses of Domestic Battery, as a Class A Misdemeanor;
              Battery, as a Class A Misdemeanor; Battery, as a Class B
              Misdemeanor; and Criminal Conversion, as a Class A
              Misdemeanor. In addition, the Court has modified the final
              instructions to avoid confusing the jury with reference to the verdict
              form[.]


      Id. at 301 (emphasis added).


[5]   The referenced verdict form instruction provided the following explanation to

      the jury about how to complete the verdict form:


              I am submitting to you a Verdict Form you may return. The
              foreperson should sign and date the verdict to which you all
              agree. Do not sign any form for which there is not unanimous
              agreement. The foreperson must return the verdict form, signed
              or unsigned. You must address all counts and lesser included
              offenses as contained in the Verdict Form. By way of example
              only, if you find that the State of Indiana has met its burden of
              proof (that is, beyond a reasonable doubt) as to the Class D
              Felony of Domestic Battery, you should mark that Count Guilty;
              or, if you find that the State of Indiana has not met its burden of
              proof (that is, beyond a reasonable doubt) as to the Class D
              Felony of Domestic Battery, you should mark that Count, Not
              Guilty.


      Appellant’s App. at 49; Tr. at 302 (emphasis added). Crockett’s counsel lodged

      an objection to the instruction as written and asked that the instruction use the

      language “may” return a verdict of guilty instead of “should,” arguing that “it’s

      more in line with the jury’s role as judges of the facts and the law[.]” Tr. at 301-

      02. The trial court overruled the objection and later read the instruction to the

      jury. Id. at 408-09.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016   Page 3 of 7
[6]   The jury found Crockett guilty as charged, and the trial court sentenced him to

      three years of incarceration for the Class D felony domestic battery conviction

      and one year for the Class D felony theft conviction, to be served consecutively.

      He now appeals.


                                     Discussion and Decision
[7]   Crockett claims it was error to instruct the jury that, if it determined that the

      State had met its burden of proof on a charged offense, then it “should” mark

      that count as guilty. Initially, we observe that, aside from the standard of

      review and reciting the instruction at issue, Crockett’s argument consists of two

      sentences, and he cites to no case law in support of his argument. Appellant’s Br.

      at 2. Indiana Appellate Rule 46(A)(8) provides in relevant part, “The argument

      must contain the contentions of the appellant on the issues presented supported

      by cogent reasoning. Each contention must be supported by citations to the

      authorities, statutes, and the Appendix or parts of the Record on Appeal relied

      on.” A party waives an issue where the party fails to develop a cogent

      argument or provide adequate citation to authority and portions of the record.

      Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005). Accordingly,

      Crockett has waived this issue for appellate review.


[8]   Waiver notwithstanding, we find no error. In reviewing challenges to jury

      instructions, we afford great deference to the trial court. R.T. v. State, 848

      N.E.2d 326, 331 (Ind. Ct. App. 2006), trans. denied. The manner of instructing

      the jury lies within the trial court’s sound discretion. Id. Jury instructions will


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016   Page 4 of 7
      be considered as a whole and not individually, and a court does not necessarily

      abuse its discretion by giving an erroneous instruction. Womack v. State, 738

      N.E.2d 320, 325 (Ind. Ct. App. 2000), trans. denied. To find that the court

      abused its discretion by giving an erroneous instruction, we must find that the

      instructions taken as a whole misstate the law or otherwise mislead the jury. Id.

      A defendant is only entitled to a reversal if he affirmatively demonstrates that

      the instructional error prejudiced his substantial rights. Snell v. State, 866

      N.E.2d 392, 396 (Ind. Ct. App. 2007).


[9]   Crockett argues that the use of the word “should” in the instruction – i.e., “if

      you find … then you should” – was erroneous. He suggests that the phrase

      “may return a verdict” of guilty or not guilty “more properly states the role of

      the jury.” Appellant’s Br. at 2. We believe that Crockett’s argument is that the

      instruction impermissibly impinged upon the jury’s role under Article I, section

      19 of the Indiana Constitution, which states: “In all criminal cases whatever,

      the jury shall have the right to determine the law and the facts.” In Wright v.

      State, 730 N.E.2d 713, 716 (Ind. 2000), our Supreme Court considered and

      rejected a defendant’s challenge to similar instructions, which read:

                                                Instruction 15


              The State has the burden of proving that the defendant is guilty
              beyond a reasonable doubt. . . . Proof beyond a reasonable doubt
              is proof that leaves you firmly convinced of the defendant’s guilt.
              . . . If, based on your consideration of the evidence, you are firmly
              convinced that the defendant is guilty of the crime charged, you should
              find him guilty. If on the other hand, you think there is a real possibility

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016   Page 5 of 7
               that he is not guilty, you should give him the benefit of the doubt and
               find him not guilty.


                                                 Instruction 21


               I submit this case to you with the confidence that you will
               faithfully discharge the grave duty resting upon you, bearing in
               mind that the liberty of the accused is not to be trifled away nor
               taken by careless or inconsiderate judgment; but if after a careful
               consideration of the law and the evidence in the case you are satisfied
               beyond a reasonable doubt that the defendant is guilty, you should return
               your verdict accordingly. Duty demands it and the law requires it.


       Id. at 716 (record citations omitted) (emphasis added).


[10]   The Wright Court held that Instructions 15 and 21, which “inform[ed] the jurors

       that if they conclude beyond a reasonable doubt that the defendant is guilty,

       they should return a verdict of guilty,” did not violate Article I, Section 19. Id.

       The Court further opined, “The instructions are hardly offensive to any of our

       fundamental precepts of criminal justice[.]” Id.; see also Morgan v. State, 755

       N.E.2d 1070, 1073 (Ind. 2001) (recognizing that trial court’s use of word

       “should” in instruction does not violate Article I, Section 19). So long as the

       jury is instructed on the elements of the crime, that it is judge of the law and the

       facts, and that it is to consider all the instructions as they relate to each other,

       “[I]t is proper to tell the jury it ‘should’ convict.” Wright, 730 N.E.2d at 716.


[11]   Here, the trial court instructed the jurors that they had the right to determine

       both the law and the facts. Tr. at 394; Appellant’s App. at 32, 56. It also

       instructed the jury as to the elements of the offenses, that all instructions must
       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016   Page 6 of 7
       be considered together, that Crockett was entitled to the presumption of

       innocence, and that the State had the burden of proof beyond a reasonable

       doubt. Tr. at 394, 399-401; Appellant’s App. at 32, 34, 39, 58, 62. Taking the

       instructions as a whole, the language of the challenged instruction did not

       invade the province of the jury or require it to follow a certain course of action.

       Crockett has failed to demonstrate that the trial court abused its discretion in

       the manner in which it instructed the jury. See Burgett v. State, 758 N.E.2d 571,

       577 (Ind. Ct. App. 2001) (rejecting defendant’s argument that phrase “you

       should find him guilty” is mandatory and invades province of jury, as jury still

       had right “to determine law and facts” as required by Article I, Section 19 of

       Indiana Constitution), trans. denied.


[12]   Affirmed.


[13]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016   Page 7 of 7
