MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Apr 20 2018, 10:44 am

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
David Becsey                                             Curtis T. Hill, Jr.
Zeigler Cohen & Koch                                     Attorney General
Indianapolis, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Cody Carpenter,                                          April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1710-CR-2452
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable James K. Snyder,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1608-F5-32986



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018            Page 1 of 5
                                             Case Summary
[1]   Cody Carpenter appeals his convictions for level 5 felony carrying a handgun

      without a license, class A misdemeanor driving while suspended, and class B

      misdemeanor possession of marijuana. He asserts that his constitutional and

      statutory rights to be present at all stages of his criminal trial were violated by

      the trial court’s manner of instructing the jury. Concluding that Carpenter

      invited any error, we affirm.


                                  Facts and Procedural History
[2]   In August 2016, Carpenter was driving his girlfriend’s vehicle. A police officer

      observed that one of the vehicle’s headlights was out and initiated a traffic stop.

      As the officer approached the driver’s side of the vehicle, he smelled marijuana

      emanating from the open window. The officer asked Carpenter for his license

      and vehicle registration, and Carpenter gave him a credit card and the title to

      the vehicle. The officer determined that Carpenter’s license had been

      suspended and arrested him. While conducting a search incident to arrest, the

      officer discovered a baggie containing marijuana in Carpenter’s pocket.


[3]   Because the vehicle was stopped on a road with no shoulder and no other driver

      was available to remove the vehicle, the police concluded that it needed to be

      towed and conducted an inventory search prior to towing. In the front center

      console, the police discovered a black box containing fourteen hydromorphone

      pills, a schedule II substance, and 0.13 grams of marijuana. On the floor




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018   Page 2 of 5
      behind the passenger seat, the police found a case that contained a handgun and

      two magazines.


[4]   The State charged Carpenter with Count 1, class A misdemeanor carrying a

      handgun without a license; Count 2, level 5 felony possession of a narcotic

      drug; Count 3, class A misdemeanor driving while suspended; and Count 4,

      class B misdemeanor possession of marijuana. In addition, the State charged

      Carpenter in part 2 of Count 1 with level 5 felony carrying a handgun without a

      license with a previous conviction.


[5]   In August 2017, a jury trial was held. Phase 1 of the trial excluded the charge

      in part 2 of Count 1. After the jury reached a verdict in phase 1, but before the

      verdict was announced, the trial court made the following statement for the

      record:


              [D]uring the time they were deliberating the jurors had a
              question specifically towards whether or not they were required
              to find a guilty verdict as to one charge if they found the [sic]
              guilty on the other. So, the court did a little bit of research on its
              own and found a pattern instruction exactly on point. And that
              instruction read, in this case the defendant is charged with four
              (4) counts of criminal offenses although[] all of the counts are
              contained within one charging document. You are to consider
              the law and the evidence as it may apply to each count
              individually and separately from the other counts. Upon
              contacting counsel from both sides, the parties agreed that that instruction
              should be given to the jury so, I added that as Final Instruction #25 and
              specifically that is Indiana Pattern Criminal Instruction
              #13.4300.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018   Page 3 of 5
      Tr. Vol. 2 at 124-25 (emphasis added). Defense counsel did not disagree with

      or object to the trial court’s statement.


[6]   The jury found Carpenter not guilty on Count 2 and guilty on Counts 1, 3, and

      4. Carpenter waived his right to a jury trial for part 2 of Count 1 and stipulated

      to the underlying basis for that charge. The trial court found Carpenter guilty of

      level 5 felony carrying a handgun without a license. The trial court sentenced

      Carpenter to an aggregate term of three years, with one year executed in

      community corrections and two years suspended to probation. This appeal

      ensued.


                                        Discussion and Decision
[7]   Carpenter argues that his constitutional and statutory rights to be present at all

      stages of his criminal trial were violated by the trial court’s manner of

      communicating Final Instruction #25 with the jury during its deliberations.

      The trial court’s statement indicates that before it gave Final Instruction #25 to

      the jury, it consulted with Carpenter’s counsel regarding the instruction and his

      counsel agreed that the trial court should give the instruction to the jury.1

      Therefore to the extent any error occurred, the error was invited. “Under the

      doctrine of invited error, a party may not take advantage of an error that she



      1
         We disagree with Carpenter’s argument that the “transcript does not clearly establish that the trial court did
      indeed contact the attorneys before responding to the jury request.” Appellant’s Br. at 8. Although the trial
      court made clear that it consulted with the attorneys for both parties before it gave Final Instruction #25, the
      record does not reveal the nature and manner of the jury’s communication to the trial court or whether the
      trial court reread the entire jury instructions to the jury. The appropriate procedure for the trial court would
      have been to make a record as to these matters as well.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018                Page 4 of 5
      commits, invites, or which is the natural consequence of her own neglect or

      misconduct.” Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App. 2016) (citing

      Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)); see also Kemp v. State, 647

      N.E.2d 1143, 1145-46 (concluding that Kemp invited instructional error by

      expressly agreeing to instruction and was precluded from seeking reversal based

      on a procedure that he agreed to), trans. denied. Accordingly, we affirm

      Carpenter’s convictions.


[8]   Affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018   Page 5 of 5
