FOR PUBLICATION



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JIM BRUGH                                       GREGORY F. ZOELLER
Logansport, Indiana                             Attorney General of Indiana

                                                NICOLE M. SCHUSTER
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                         Aug 27 2012, 9:44 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                  CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




ROBERT DOWELL,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 09A05-1201-CR-36
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE CASS SUPERIOR COURT
                       The Honorable Douglas B. Morton, Senior Judge
                               Cause No. 09D02-1103-FA-2


                                     August 27, 2012

                              OPINION - FOR PUBLICATION

MAY, Judge
         Robert Dowell appeals his conviction of Class A felony robbery resulting in serious

bodily injury.1 He argues the trial court erred when it gave the jury an additional instruction

after deliberations began, but did not call the jury back into the courtroom or re-read the rest

of the instructions. We reverse and remand.

                             FACTS2 AND PROCEDURAL HISTORY

         The State charged Dowell with robbery resulting in serious bodily injury, a Class A

felony, after he, his girlfriend Mindy Boehme, and Dustin Rush beat and robbed Roman

Nusbaum. The three saw Nusbaum in a Logansport tavern. Nusbaum appeared drunk and

was carrying a large amount of cash. The three went to another bar, where they drank,

smoked methamphetamine, and developed a plan to rob Nusbaum. Boehme would lure

Nusbaum from the tavern and take him to an agreed-on location, where the two men would

rob him.

         Boehme returned to the tavern and found Nusbaum. They left the tavern together, and

Boehme drove him to the designated location. Dowell and Rush removed Nusbaum from the

car and beat him. Dowell hit Nusbaum with a baseball bat. Rush took Nusbaum’s money,

then met Boehme at Rush’s home. There Dowell and Rush helped Boehme remove

Nusbaum’s blood from her car. Dowell and Rush placed their clothing in a bag for disposal

and threw away their shoes.


1
    Ind. Code § 35-42-5-1.
2
  We remind the State that a Statement of Facts in an appellate brief “shall describe the facts relevant to the
issues presented for review.” Ind. Appellate Rule 46 (emphasis added). The State’s Statement of Facts
describes Dowell’s offense in great detail, but is devoid of any facts relevant to the only issue presented for our
review.
                                                        2
       The trial court instructed the jury as to the elements of robbery, but there was no

instruction concerning accomplice liability. The robbery instruction read in part:

       Before you may convict the Defendant, the State must have proved each of the
       following beyond a reasonable doubt:
       1.     The Defendant, Robert Dowell
       2.     knowingly or intentionally
       3.     took property from Roman Nusbaum
       4.     by using or threatening the use of force on Roman Nusbaum
       5.     and the commission of elements 1 through 4 resulted in serious bodily
              injury to Roman Nusbaum.

(App. at 20.)

       After deliberations began, the jury foreman gave the bailiff a handwritten note:

       The jurors would like additional definition to know:
       To meet the qualifications for element 5, would the defendant have had to
       directly caused [sic] the injuries with the baseball bat or could he have just
       been directly involved in the incident (i.e. holding the victim,, but not striking
       the victim with a weapon.)? [sic]
       To meet the qualifications for element 3, would the defendant have had to have
       explicitly taken the property off of the victim’s person or could he have just
       been directly involved in it?

(Id. at 60.)

       The trial court responded by returning the note with the handwritten statement

“Indiana law provides that a person who aids another person to commit an offense commits

that offense.” (Id.) The judge did not call the jury back into the courtroom, stating that

procedure would be “unduly cumbersome.” (Id. at 53.) Nor did he re-read all the

instructions including the new one on accomplice liability.

                             DISCUSSION AND DECISION

       Ind. Code § 34-36-1-6 provides:

                                               3
       If, after the jury retires for deliberation:
       (1) there is a disagreement among the jurors as to any part of the testimony; or
       (2) the jury desires to be informed as to any point of law arising in the case;
       the jury may request the officer to conduct them into court, where the
       information required shall be given in the presence of, or after notice to, the
       parties or the attorneys representing the parties.

But once deliberations commence, the trial court should not give additional instructions.

Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982). This rule prevents the trial court from

giving special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus

avoids the possibility that the additional instruction might tell the jury what it ought to do

concerning that issue. Id.

       When confronted with a question from a jury that has commenced deliberation, the

trial judge must respond in a manner that accords with the legal requirements for final

instructions and is fair. Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981). The “path is

extremely hazardous” for the court that would depart from the body of final instructions and

do other than reread the final instructions in responding to jury questions. Id. Such a

departure will be warranted in only the most extreme circumstances. Id. It must serve to

amend the final instructions by adding a necessary one previously omitted or correcting an

erroneous one, and must be fair to the parties in the sense that it should not reflect the judge’s

view of factual matters. Id.

       It is only when the jury question coincides with an error or “legal lacuna” in the final

instructions that a response other than rereading from the body of final instructions is

permissible. Id. A “lacuna” is an “empty space or missing part; a gap.” Downs v. State, 656


                                                4
N.E.2d 849, 852 n.4 (Ind. Ct. App. 1995) (quoting The American Heritage Dictionary of the

English Language 732). If the trial court decides to give an additional instruction because the

question relates to a “legal lacuna,” the trial court must reread all of the instructions so that

the additional instruction will not be over-emphasized. Graves v. State, 714 N.E.2d 724, 726

(Ind. Ct. App. 1999).

       In Graves, we addressed a situation almost identical to that in the case before us.

There, we reversed and remanded for a new trial when the trial court gave the jury an

accomplice liability instruction after deliberations had begun, but did not re-read all the final

instructions. The jury sent a note to the court asking: “Did [Graves] have to personally take

the property to be guilty of robbery?” Id. at 725. Counsel for Graves told the court he

believed the proper procedure would be to re-read the entire set of final instructions,

including any additional instructions. Instead, as in the case before us, the court read to the

jury only an instruction on accomplice liability. Graves was convicted of robbery and other

offenses.

       In Graves, both parties agreed the jury’s question concerned a point of law and the

trial court complied with the mandates of Ind. Code § 34-36-1-6. Nevertheless, we noted,

our Supreme Court has long recognized that once jury deliberations commence, the trial court

should not give any additional instructions. Id. at 726 (citing Crowdus, 431 N.E.2d at 798).

We further noted the “one limited and narrow exception” to that “strict rule,” id.: that when

the jury’s question coincides with an error or “legal lacuna” in the final instructions, the trial

court may respond in a manner other than simply re-reading the entire set of final

                                                5
instructions. Id. at 726. “This prohibitive rule exists to protect against giving special

emphasis to a particular issue and to guard against the possibility that the additional

instruction might suggest to the jury a resolution to an issue.” Id. (citing Crowdus, 431

N.E.2d at 798).

        In Graves, as in the case before us, the jury sent a note asking specifically about the

charge of robbery and then, after receiving the additional instruction on accomplice liability,

returned with a verdict of guilty as to that charge. As we explained in Graves:

        In this situation the potential for prejudice is great. The evidence reveals that
        Graves’ companions searched Jones’ house and removed items from the
        residence, but it does not show that Graves actually removed any of the objects
        from the house.3 Therefore, when the trial court instructed the jury on
        accomplice liability, without re-reading the entire set of final instructions, it
        not only placed special significance on the particular issue of Graves’
        culpability with regard to the charge of robbery, but also the lone, additional
        instruction suggests a resolution to the jury’s predicament evidenced by their
        note. The jury was instructed as follows: “[A] person who knowingly or
        intentionally aids, induces or causes another person to commit an offense,
        commits that offense.”

Id. at 726-27 (footnote added).

        We found the Graves procedure gave “the type of improper emphasis that the rule of

Crowdus aims to alleviate.” Id. at 727. Even though there was a “legal lacuna” in the form

of the omitted instruction on accomplice liability such that the trial court properly could


3
   Similarly, in the case before us it appears there was no evidence Dowell directly took the money from
Nusbaum. In its Statement of Facts, the State asserts “The two [Dowell and Rush] took Nusbaum’s money”
when they beat Nusbaum, (Br. of Appellee at 3), but the pages of the transcript to which the State directs us do
not support that statement. One reference is to Boehme’s testimony that she was told days after the robbery
that Rush “ended up with all the money.” (Tr. at 187.) The other reference is to testimony by an acquaintance
of Rush that Rush showed him the money that had been stolen from Nusbaum. (Id. at 266.) We admonish the
State to refrain from so misrepresenting the record.

                                                       6
provide the jury with the additional instruction, we held the trial court committed reversible

error because it did not re-read the entire set of final instructions contemporaneously with the

giving of the additional instruction.4 Id. Cf. Hero v. State, 765 N.E.2d 599, 603 (Ind. Ct.

App. 2002), trans. denied, where we noted “[i]t may be true that when the trial court gives a

special instruction on one particular issue, it tends to emphasize that issue as being of primary

importance and tends to tell the jury what it ought to do.” In Hero, the trial court was aware

of that danger, and “took all precautions to avoid such an emphasis. When the new

instruction was added, it was one of nineteen instructions. It was not inserted first or last - a

position where it would stand out - but fourth, a natural and logical position amongst the

other instructions.” Id.

        In Brannum v. State, 267 Ind. 51, 57, 366 N.E.2d 1180, 1184 (1977), our Supreme

Court characterized as a “prejudicial act of the trial court” the “giving of a special instruction

to the jury in the middle of their deliberations.” After eight and one-half hours of

deliberation, it appeared the jury was having difficulty arriving at a verdict “because of legal

questions being discussed among them.” Id., 366 N.E.2d at 1184. The record on appeal did

not reflect what those questions were. The State and the defense agreed the court would re-

read the instructions previously given. The trial court then indicated it was going to give to


4
  The State acknowledges Graves, but appears to argue the Graves rule does not apply to the case before us
because of our Supreme Court’s statement in Ronco v. State, 862 N.E.2d 257, 259 (Ind. 2007) that “[u]nder
our recently adopted jury rules, Indiana trial courts have greater leeway to facilitate and assist jurors in the
deliberative process, in order to avoid mistrials.” (Internal quotation omitted). We decline to hold that such
greater “leeway” now permits a trial court to subject a defendant to a “prejudicial act of the trial court” in the
form of the “giving of a special instruction to the jury in the middle of their deliberations,” Brannum, 267 Ind.
at 57, 366 N.E.2d at 1184, or to the “great” potential for prejudice we noted in Graves, 714 N.E.2d at 726.

                                                        7
the jury a further instruction it had prepared, which instruction addressed a decision

Brannum’s counsel quoted in final argument. Our Supreme Court held the additional

instruction was error, not because of its content about the decision counsel quoted, but

       the question, rather, is one of the court’s adding an instruction at this juncture
       of the trial in which he commented on final argument of defense counsel,
       emphasizing one aspect of the decision the jury was to make. The court
       apparently emphasized the aspect he felt the jury was troubled about. This
       possibility seems to be borne out by the fact that the jury found the defendant
       guilty of first degree murder in a very short time after the special instruction
       was given, previously having been in deliberation for eight and one-half hours.

Id. at 57-58, 366 N.E.2d at 1184. By giving the special instruction sua sponte, “the court

emphasized this provision as one of primary importance to the jury, and tended to tell them

what they ought to do.” Id. at 59, 366 N.E.2d at 1185.

       In the case before us, as in Graves, the jury was apparently not prepared to conclude

its deliberations until its question was answered. The court gave it the additional instruction

on accomplice liability without re-reading the rest of the instructions, and the jury then

returned a guilty verdict. That procedure gave that instruction “the type of improper

emphasis that the rule of Crowdus aims to alleviate.” Graves, 714 N.E.2d at 727, because the

trial court did not re-read the entire set of final instructions contemporaneously with the

giving of the additional instruction. Id. As such an additional instruction tended to

“emphasize that issue as being of primary importance and . . . to tell the jury what it ought to

do,” Hero, 765 N.E.2d at 603, we must reverse and remand for a new trial.

       Reversed and remanded.

KIRSCH, J., and NAJAM, J., concur.

                                               8
