MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                              Jan 23 2018, 9:49 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
John L. Tompkins                                         Curtis T. Hill, Jr.
The Law Office of John L. Tompkins                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Randall S. Slaten,                                      January 23, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        55A01-1707-CR-1534
        v.                                              Appeal from the Morgan Superior
                                                        Court
State of Indiana,                                       The Honorable Brian H.
Appellee-Plaintiff.                                     Williams, Judge
                                                        Trial Court Cause No.
                                                        55D02-1511-F3-1652



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018           Page 1 of 9
[1]   Randall S. Slaten appeals his conviction for robbery as a level 3 felony. Slaten

      raises one issue which we revise and restate as whether the trial court

      committed fundamental error in instructing the jury. We affirm.


                                      Facts and Procedural History

[2]   Slaten’s girlfriend worked at the Woodchuck IGA in Morgantown, Indiana,

      and Slaten exchanged messages with John Nocito about robbing the store and

      asked if he had a weapon. On August 30, 2015, Nocito entered the

      Woodchuck IGA with a handgun, fired the gun, and took property from the

      store.


[3]   On November 24, 2015, the State charged Slaten with aiding, inducing, or

      causing armed robbery as a level 3 felony. A jury trial was held in May 2017.

      In its final instructions to the jury, the trial court read Final Instruction No. 6,

      to which Slaten did not object. The instruction provided that, before the jury

      may convict Slaten, the State must have proved that Slaten knowingly aided,

      induced, or caused Nocito to commit the offense of robbery by providing

      information to Nocito concerning procedures and/or locations inside the store,

      identifying to Nocito times when larger sums of money would be at the store,

      and/or recruiting Nocito to commit the robbery. The jury found Slaten guilty

      as charged.


                                                  Discussion

[4]   The issue is whether the trial court committed fundamental error in instructing

      the jury. Final Instruction No. 6 states:

      Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 2 of 9
        Aiding, inducing or causing Robbery is defined by law as
        follows:

        A person who, knowingly or intentionally aids, induces or causes
        another person to commit an offense commits that offense. A
        person may be convicted of aiding, inducing or causing Robbery
        even if the other person has not been prosecuted for the Robbery,
        has not been convicted of the Robbery, or has been acquitted of
        the Robbery.

        Before you may convict the Defendant, the State must have
        proved each of the following Five (5) elements beyond a
        reasonable doubt:

        1.      The Defendant

        2.      Knowingly

        3.      Aided or induced or caused

        4.      John A Nocito to commit the offense of Robbery, defined
                as

                A.       John A Nocito

                B.       Knowingly

                C.       took property from Morgantown IGA

                D.       by using or threatening the use of force on Wilma
                         Floyd, and

                E.       when committing the offense, John A Nocito was
                         armed with a deadly weapon, a handgun.

        5.      by the Defendant’s:

                A.       Providing information to John A. Nocito
                         concerning procedures and/or locations inside the
                         Morgantown IGA and/or


Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 3 of 9
                      B.       Identifying to John A. Nocito times when larger
                               sums of money would be at the Morgantown IGA
                               and/or

                      C.       Recruiting John A. Nocito to commit the robbery at
                               the Morgantown IGA.

              If the State failed to prove each of these elements beyond a
              reasonable doubt, you must find the Defendant not guilty of
              aiding, inducing, or causing Robbery, a Level 3 felony, charged
              in Count 1.


      Appellant’s Appendix Volume 2 at 104.


[5]   Slaten asserts that Final Instruction No. 6 failed “to explain how the jury must

      or may approach choosing among or combining the options presented in the

      disjunctive within paragraphs 3 and 5” and that the instruction “misleads the

      jury by erroneously telling the jury that they may pick from any of the three

      alternative offense elements in paragraph 3, and that they may also pick any

      one or any combination of the three sub elements in paragraph 5, without ever

      coming to an agreement as a group about which alternative elements are being

      found.” Appellant’s Brief at 11. He argues the error in Final Instruction No. 6

      denied him due process and amounts to fundamental error. The State

      maintains that the trial court did not commit error because the jury does not

      have to unanimously agree on the theory of the defendant’s culpability, that the

      jury did not have to unanimously agree about how the State proved the third

      and fifth elements in Final Instruction No. 6, and that there was only room for

      the jury to disagree about how Slaten aided, induced, or caused robbery, so the

      trial court did not have to give a specific unanimity instruction.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 4 of 9
[6]   At a pre-trial hearing, the trial court stated that the prosecutor had “supplied

      language . . . as to what he thought the aiding, including act would be and it is

      one of three” and “[t]here are three things he has proposed . . . and they are in

      what I would call, the disjunctive—like any one of the above.” Transcript

      Volume II at 3. In his brief, Slaten states that neither party objected to the

      instruction or offered an alternative to it at any stage. His defense counsel did

      not object to the final jury instructions at trial. Because Slaten did not object to

      Final Instruction No. 6 or offer an alternative instruction, he has waived his

      challenge to the instruction. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind.

      2011) (holding that the defendant had not objected to the trial court’s

      instruction or offered an instruction of his own and accordingly had waived the

      issue) (citing Mitchell v. State, 726 N.E.2d 1228, 1241 (Ind. 2000) (noting “a

      defendant who fails to object to an instruction at trial waives any challenge to

      that instruction on appeal”) (citing Trial Rule 51(C)), reh’g denied; Ortiz v. State,

      766 N.E.2d 370, 375 (Ind. 2002) (“Failure to tender an instruction results in

      waiver of the issue for review.”)). We will review an issue that was waived at

      trial if we find fundamental error occurred. Id. In order to be fundamental, the

      error must represent a blatant violation of basic principles rendering the trial

      unfair to the defendant and thereby depriving the defendant of fundamental due

      process. Id. The error must be so prejudicial to the defendant’s rights as to

      make a fair trial impossible. Id. In considering whether a claimed error denied

      the defendant a fair trial, we determine whether the resulting harm or potential

      for harm is substantial. Id. at 1178-1179. Harm is not shown by the fact that

      the defendant was ultimately convicted. Id. at 1179. Rather, harm is
      Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 5 of 9
      determined by whether the defendant’s right to a fair trial was detrimentally

      affected by the denial of procedural opportunities for the ascertainment of truth

      to which he would have been entitled. Id.


[7]   Slaten has not demonstrated that fundamental error occurred. A jury must

      unanimously agree regarding which crime a defendant committed, and each

      count of an information may only include a single offense. State v. Sturman, 56

      N.E.3d 1187, 1203 (Ind. Ct. App. 2016) (citations omitted). Thus, an

      instruction which allows the jury to find a defendant guilty if he commits either

      of two or more underlying acts, either of which is in itself a separate offense, is

      ambiguous because it is impossible to determine whether the jury unanimously

      found that the defendant committed one particular offense. Id. Nevertheless,

      the State is permitted to “allege alternative means or ‘theories of culpability’

      when prosecuting the defendant for a single offense.” Id. (citing Baker, 948

      N.E.2d at 1175 (citation omitted)). In other words, the State is permitted to

      “present the jury with alternative ways to find the defendant guilty as to one

      element.” Id. (brackets omitted) (citing Baker, 948 N.E.2d at 1175 (quoting Cliver

      v. State, 666 N.E.2d 59, 67 (Ind. 1996) (“In criminal cases, as in all litigation,

      different jurors may be persuaded by different pieces of evidence, even when

      they agree upon the bottom line.”) (citation and internal quotation marks

      omitted))). “[W]hile jury unanimity is required as to the defendant’s guilt, it is

      not required as to the theory of the defendant’s culpability.” Taylor v. State, 840

      N.E.2d 324, 333 (Ind. 2006).




      Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 6 of 9
[8]   In Taylor, the State pursued two theories on how the defendant could be guilty

      of murder, either by killing the victim or by aiding and abetting another person

      to kill the victim. Id. at 331. The defendant argued in part that the jury should

      have been instructed that, in order to convict him of murder, the verdict had to

      be unanimous on one of the two prosecution theories. Id. at 332. The Court

      observed that the jury had to determine only whether the defendant committed

      one act of murder, stated that there were two different theories upon which the

      jury could have found that the defendant committed this one act, either as the

      principal or an accomplice, and noted that the defendant would have been

      equally guilty of murder whether he acted as the principal shooter or merely an

      accomplice. Id. at 333.


[9]   In Sturman, the State charged the defendant with multiple counts of reckless

      homicide and issuing an invalid prescription, and the defendant argued that the

      method of charging him allowed for non-unanimous jury verdicts. 56 N.E.3d

      at 1202-1203. We observed that, within each charge for reckless homicide, the

      State alleged “alternative means” by which the reckless homicide was

      committed, namely, by issuing prescriptions “for Methadone, Dilaudid, and/or

      Valium without medical legitimate purpose and outside the usual course of

      practice.” Id. at 1204. We held in part that, so long as each juror was

      convinced beyond a reasonable doubt that the defendant was guilty of reckless

      homicide, the jury need not have decided unanimously by which theory he was

      guilty. Id. (citing Taylor, 840 N.E.2d at 333-334).




      Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 7 of 9
[10]   Final Instruction No. 6 expressly states that, before the jury could convict

       Slaten, the State must have proved each of the five elements beyond a

       reasonable doubt. As for the requirement that the jury determine beyond a

       reasonable doubt that Slaten aided, induced, or caused another person to

       commit the robbery offense, we observe that Final Instruction No. 6 provided

       “alternative ways” or “alternative means” by which Slaten aided, induced, or

       caused Nocito to commit the offense. In particular, the instruction required the

       jury to find that the State proved beyond a reasonable doubt that Slaten aided,

       induced, or caused Nocito to commit the offense by Slaten performing one or

       more of the alleged actions of “[p]roviding information to John A. Nocito

       concerning procedures and/or locations inside the Morgantown IGA,”

       “[i]dentifying to John A. Nocito times when larger sums of money would be at

       the Morgantown IGA,” or “[r]ecruiting John A. Nocito to commit the robbery

       at the Morgantown IGA.” Appellant’s Appendix Volume 2 at 104. The

       conjunctions “and/or” in the fifth paragraph of the jury instruction merely

       presented the jury with alternative ways or means to find Slaten guilty as to one

       element. The jury need not have decided unanimously by which theory or

       alternative means Slaten was guilty. The trial court did not commit

       fundamental error in instructing the jury. See Cliver, 666 N.E.2d at 67 (noting

       that the defendant argued that the specification of alleged overt acts, connected

       by the conjunction “or,” made it possible for different individual jurors to reach

       a guilty verdict upon different bases, thus making it impossible to determine

       whether the jury returned a unanimous verdict, and holding that the State

       merely presented the jury with alternative ways to find the defendant guilty as
       Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 8 of 9
       to one element and that no error occurred); Sturman, 56 N.E.3d at 1203-1204

       (noting the State is permitted to present the jury “with alternative ways to find

       the defendant guilty as to one element,” observing that the State alleged

       “alternative means” by which the offenses were committed by alleging the

       defendant issued prescriptions “for Methadone, Dilaudid, and/or Valium,” and

       holding that the jury need not have decided unanimously by which theory the

       defendant was guilty).


                                                   Conclusion

[11]   For the foregoing reasons, we affirm Slaten’s conviction.


[12]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1707-CR-1534 | January 23, 2018   Page 9 of 9
