      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Dec 02 2016, 7:46 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
      Matthew D. Anglemeyer                                   Gregory F. Zoeller
      Marion County Public Defender                           Attorney General of Indiana
      Indianapolis, Indiana
                                                              Monika Prekopa Talbot
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Hollis Lloyd,                                           December 2, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              49A02-1512-CR-2306
              v.                                              Appeal from the Marion Superior
                                                              Court
      State of Indiana,                                       The Honorable Jose D. Salinas,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              49G14-1508-F6-28275



      Mathias, Judge.


[1]   Hollis Lloyd (“Lloyd”) was convicted in Marion Superior Court of Class A

      misdemeanor possession of marijuana. Lloyd appeals and claims that the trial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 1 of 14
      court committed fundamental error in instructing the jury. Concluding that the

      trial court’s jury instructions did not constitute fundamental error, we affirm.


                                    Facts and Procedural History

[2]   The facts of this case appear to be undisputed. On the night of August 8, 2015,

      Indianapolis Metropolitan Police Officer Michael Gibson (“Officer Gibson”)

      responded to a call of an altercation between a man and a woman at an address

      on Savannah Drive in Indianapolis. When he arrived at the scene, Officer

      Gibson saw a woman, later identified as Leslie Best (“Best”) standing outside

      the home and a man, later identified as Lloyd, sitting by the front porch steps.

      Best and Lloyd were still arguing, and Officer Gibson suggested that Lloyd

      leave for the night to de-escalate the situation. Lloyd agreed and stated that he

      would leave permanently.


[3]   Lloyd then began to go into the house to gather his belongings, making a few

      trips from the house to his car. Lloyd placed his items on the ground near the

      rear of his car. As Officer Gibson went to ask Lloyd when he would be ready to

      leave, he smelled the odor of marijuana. He looked down and saw marijuana in

      a clear plastic bag. Officer Gibson arrested Lloyd for possession of marijuana.

      A subsequent search of the bag revealed marijuana and pills.


[4]   On August 11, 2015, the State charged Lloyd with Level 6 felony possession of

      a controlled substance and Class A misdemeanor possession of marijuana. A

      jury trial was held on December 17, 2015. Lloyd made no objection to the trial

      court’s instructions to the jury. At the conclusion of the trial, the jury found


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 2 of 14
      Lloyd not guilty of the felony charge but guilty of the misdemeanor charge. The

      trial court then sentenced Lloyd to 242 days with sixty-two days executed and

      the remainder suspended to probation. Lloyd now appeals.


                                           Standard of Review

[5]   Lloyd claims that the trial court erred in instructing the jury. The manner of

      instructing a jury is left to the sound discretion of the trial court. Quiroz v. State,

      963 N.E.2d 37, 41 (Ind. Ct. App. 2012) (citing Rogers v. State, 897 N.E.2d 955,

      962 (Ind. Ct. App. 2008)). On appeal, we will not reverse the trial court’s ruling

      unless the instructional error is such that the charge to the jury misstates the law

      or otherwise misleads the jury. Id. Jury instructions are to be considered as a

      whole and in reference to one another, and even an erroneous instruction will

      not constitute reversible error if the instructions, taken as a whole, do not

      misstate the law or otherwise mislead the jury. Id.


[6]   Lloyd admits that he did not object to the jury instructions he now claims were

      improper. This failure to object waives the issue for purposes of appeal. Id. at 42

      (citing Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011)). Lloyd attempts to

      avoid this waiver by claiming that the trial court’s instructions constituted

      fundamental error. As we explained in Quiroz:


              The fundamental error doctrine provides a vehicle for the review
              of error not properly preserved for appeal. In order to be
              considered 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. The error must be so prejudicial to the defendant’s

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 3 of 14
              rights as to make a fair trial impossible. In considering whether a
              claimed error denied the defendant a fair trial, we determine
              whether the resulting harm or potential for harm is substantial.
              Harm is not shown by the fact that the defendant was ultimately
              convicted; instead, harm is 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.

      Quiroz, 963 N.E.2d at 42 (citing Baker, 948 N.E.2d at 1178). Our supreme court

      has emphasized that the fundamental error exception to the requirement for

      contemporaneous objection is “extremely narrow” and “is available only in

      egregious circumstances.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).


                                   Preliminary Instruction No. 2.

[7]   Lloyd first attacks the trial court’s Preliminary Instruction No. 2, which

      provided as follows:


              You have been selected as jurors and you are bound by your oath
              to try this case fairly and honestly.
              You are permitted to discuss the evidence among yourselves in
              the jury room during recesses from trial but only when all jurors
              and alternates are present. You should keep an open mind. You
              should not form or express any conclusion or judgment about the
              outcome of the case until the court submits the case to you for
              your deliberations.
              You must not communicate about this case with anyone else. Do
              not talk to any of the parties, their lawyers or any of the
              witnesses. If anyone tries to talk about the case in your presence,
              you should tell the bailiff immediately and privately. Throughout
              the trial you must not:
                   Conduct research on your own or as a group.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 4 of 14
              Use dictionaries, the internet or any other resource to
               gather or send any information about this case.
              Investigate the case, conduct any experiments or attempt
               to gain any specialized knowledge about the case.
              Receive assistance in deciding the case from any outside
               source.
              Have or use laptops or cell phones in the courtroom or in
               the jury room.
              Consume any alcohol or drugs that could affect your
               ability to hear and understand the evidence.
              Read, watch or listen to anything about this trial from any
               source whatsoever, including newspapers, radio, television
               or the internet.
              Listen to discussions among or receive information from
               other people about this trial.
              Visit the scene of any event involved in this case. If you
               happen to pass by the scene, do not stop to investigate.
         The reason for these restrictions is to ensure that
         Your decision is based only on the evidence presented during this
         trial and the court’s instructions on the law.
         You should focus your attention on the court proceedings and
         the evidence, and reach a verdict based upon what you hear and
         see in this court.

Appellant’s App. pp. 33-34.1 Lloyd claims this instruction was faulty for four

reasons.




1
 The trial court’s instructions were printed in all uppercase letters. To make the instructions easier to read,
we have lowered the case of the instructions as necessary.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016             Page 5 of 14
       A. Role of Alternate Jurors

[8]    Lloyd first contends that Preliminary Instruction No. 2 failed to inform the jury,

       as provided by Jury Rule 20, that the “jurors, including alternates, are permitted

       to discuss the evidence among themselves in the jury room during recesses from

       trial when all are present, as long as they reserve judgment about the outcome

       of the case until deliberations commence.” Ind. Jury Rule 20(a)(8) (emphasis

       added). We disagree.


[9]    Preliminary Instruction No. 2 plainly informed the jury “You are permitted to

       discuss the evidence among yourselves in the jury room during recesses from

       trial but only when all jurors and alternates are present.” Appellant’s App. p. 33

       (emphasis added). We agree with the State that even though the instruction

       does not explicitly state that the alternates could participate in the jury

       discussions, it did inform the jury that the alternates were required to be present

       during such discussions. Thus, the instruction at least suggested or implied that

       the alternates were permitted to participate in the discussion, and the

       instruction placed no restriction upon the alternate jurors with respect to the

       discussions. Accordingly, we cannot say that this aspect of Preliminary

       Instruction No. 2 constituted fundamental error.


       B. Restricted Activities

[10]   Lloyd next complains that Preliminary Instruction No. 2 did not inform the

       jurors that they could not use computers or other electronic communication




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 6 of 14
       devices such as mobile phones to engage in the list of prohibited activities

       delineated by the instruction. Jury Rule 20(b) states:


               The court shall instruct the jurors before opening statements that
               until their jury service is complete, they shall not use computers,
               laptops, cellular telephones, or other electronic communication
               devices while in attendance at trial, during discussions, or during
               deliberations, unless specifically authorized by the court. In
               addition, jurors shall be instructed that when they are not in court
               they shall not use computers, laptops, cellular telephones, other
               electronic communication devices, or any other method to:
                   (1) conduct research on their own or as a group regarding the
                   case;
                   (2) gather information about the issues in the case;
                   (3) investigate the case, conduct experiments, or attempt to
                   gain any specialized knowledge about the case;
                   (4) receive assistance in deciding the case from any outside
                   source;
                   (5) read, watch, or listen to anything about the case from any
                   source;
                   (6) listen to discussions among, or receive information from,
                   other people about the case; or
                   (7) talk to any of the parties, their lawyers, any of the
                   witnesses, or members of the media, or anyone else about the
                   case, including posting information, text messaging, email,
                   Internet chat rooms, blogs, or social websites.


[11]   Preliminary Instruction No. 2 informed the jurors that, throughout the trial,

       they were not permitted to: (1) conduct research on their own or as a group; (2)

       use dictionaries, the Internet, or any other resource to gather or send any

       information about the case; (3) investigate the case, conduct any experiments,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 7 of 14
       or attempt to gain any specialized knowledge about the case; (4) receive

       assistance in deciding the case from any outside source; (5) have or use laptops

       or cell phones in the courtroom or in the jury room; (6) consume any alcohol or

       drugs that could affect their ability to hear and understand the evidence; (7)

       read, watch, or listen to anything about this trial from any source whatsoever,

       including newspapers, radio, television, or the Internet; (8) listen to discussions

       among or receive information from other people about the trial; or (9) visit the

       scene of any event involved in the case. Appellant’s App. pp. 33-34.


[12]   Lloyd does not deny this, but claims that the trial court’s instruction failed to

       tell the jurors that they could not use computers or other electronic devices to

       do these activities. We agree with the State that this would have been

       redundant. Preliminary Instruction No. 2 generally informed the jurors of the

       restrictions on their activities. These restrictions were stated generally and

       would apply to activities, e.g., independent research, conducted with a

       computer or otherwise. Nothing in the instruction suggests that these activities

       would be permitted if performed electronically.


       C. Use of Computers and Electronic Communication Devices

[13]   Lloyd also complains that Preliminary Instruction No. 2 failed to inform the

       jurors, as required by Jury Rule 20, that they must not engage in the listed

       activities “when they are in court.” Instead, the instruction uses the term

       “throughout the trial.” We fail to see a meaningful difference between these

       limitations. Certainly, these differences do not rise to the level of fundamental

       error.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 8 of 14
[14]   In a related argument, Lloyd claims that Preliminary Instruction No. 2 was

       improper because, although it informs the jurors that they should not have

       laptops or cellular phones in the courtroom or jury room, it “fails to include the

       language under J.R. 20 that “‘until your jury service is complete, you shall not use

       [1] computers, [2] laptops, [3] cellular telephones, or [4] other electronic

       communication devices while in attendance at trial, during discussions, or

       during deliberations, unless specifically authorized by the court.’” Appellant’s Br. p.

       12 (emphases added by appellant).


[15]   However, as noted above, the trial court’s instruction explained to the jurors

       that they were prohibited from using “laptops or cell phones in the courtroom

       or in the jury room” “throughout the trial.” Appellant’s App. pp. 33-34. We

       believe this adequately explained to the jurors that they should not use

       computers or other similar devices during the trial, i.e., until their jury service

       was completed.


       D. Communication with Non-Jurors

[16]   Lastly, Lloyd notes that Preliminary Instruction No. 2 informs the jurors that

       they “must not communicate about this case with anyone else. Do not talk to

       any of the parties, their lawyers or any of the witnesses. If anyone tries to talk

       about the case in your presence, you should tell the bailiff immediately and

       privately.” Appellant’s App. p. 33. Lloyd complains that this fails to comply

       with Jury Rule 20(b)(7), which states that jurors shall be informed that they

       must not “talk to any of the parties, their lawyers, any of the witnesses, or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 9 of 14
       members of the media, or anyone else about the case, including posting information, text

       messaging, email, Internet chat rooms, blogs, or social websites.” (emphasis added).


[17]   Although the list in Jury Rule 20(b)(7) is more detailed and specific, the trial

       court’s instruction adequately informed the jury that they were generally

       prohibited from communicating about the case “with anyone else.” This broad

       prohibition would include the more specific instances listed in Jury Rule

       20(b)(7). We therefore fail to see any error, much less fundamental error, in the

       trial court’s instruction regarding communicating with others about the case.


                                    Preliminary Instruction No. 14

[18]   Lloyd also attacks the adequacy of Preliminary Instruction No. 14, which

       explained the procedure the jurors were to use if they desired to ask a question

       of a witness. Lloyd notes that the instruction does not specifically mention that

       the alternate jurors may also ask questions. Jury Rule 20(a)(7) provides that the

       jury must be informed “that jurors, including alternates, may seek to ask

       questions of the witnesses by submission of questions in writing.” Preliminary

       Instruction No. 14 stated that “if you have questions [to ask of a witness],

       please raise your hand after the attorneys have asked all of their questions and

       before the witness has left the stand.” Appellant’s App. p. 47. This instruction

       does not specifically include a reference to alternate jurors. It is instead

       generally directed at the entire jury, and does not exclude alternate jurors.

       Accordingly, we conclude that Preliminary Instruction No. 14 does not rise to

       the level of fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 10 of 14
                                    Preliminary Instruction No. 16

[19]   Lloyd next attacks Preliminary Instruction No. 16, which provided, “If, at any

       time, you realize you know something about the case or know a witness or the

       defendant, you must inform the bailiff privately at your earliest opportunity.”

       Appellant’s App. p. 49. Lloyd claims that this instruction was insufficient

       because it failed to comply with Jury Rule 20(a)(5), which requires that the

       jurors be instructed regarding the “personal knowledge procedure under [Jury]

       Rule 24.” Jury Rule 24 provides:


               If the court receives information that a juror has personal
               knowledge about the case, the court shall examine the juror
               under oath in the presence of the parties and outside the presence
               of the other jurors concerning that knowledge.
               If the court finds that the juror has personal knowledge of a
               material fact, the juror shall be excused, and the court shall
               replace that juror with an alternate. If there is no alternate juror,
               then the court shall discharge the jury without prejudice, unless
               the parties agree to submit the cause to the remaining jurors.

[20]   Although the jury was not instructed regarding the specific procedure that the

       trial court was required to follow under Jury Rule 24 if it learned that a juror

       had personal knowledge about the case, Preliminary Instruction No. 16 did

       inform the jury of its obligation to bring to the trial court’s attention any

       personal knowledge the jurors had about the case. As noted by the State, Jury

       Rule 24 is directed to the trial court, not the jurors. We therefore conclude that

       it was not fundamental error to leave out the specific procedure the trial court

       was to follow in Preliminary Instruction No. 16. The jurors were still instructed


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 11 of 14
       to inform the trial court, through the bailiff, if they had any personal knowledge

       about the case, the defendant, or the witnesses. None of the jurors in Lloyd’s

       trial indicated that they had such knowledge. Accordingly, we discern no

       fundamental error.


                                         Final Instruction No. 8

[21]   Lastly, Lloyd criticizes the trial court’s Final Instruction No. 8, which provided:


               The alternate juror in this case may accompany the jury to the
               jury room during deliberations. However, until you are
               designated as a replacement for another juror in open court, you
               may not take part in deliberations. You must listen attentively to
               the deliberations and by doing so be prepared to provide your
               view if called to do so.

       Appellant’s App. p. 58.


[22]   This instruction, Lloyd claims, is insufficient when compared to Indiana

       Pattern Jury Instruction No. 13.2900, which provides, “The foreperson shall

       prevent alternate jurors from deliberating or voting with the jury. The

       foreperson shall promptly report any violation of this instruction to [the trial

       court judge].”

[23]   We first observe that the Indiana Pattern Jury Instructions “are prepared under

       the auspices of the Indiana Judges Association in conjunction with the Indiana

       Judicial Conference Criminal and Civil Instruction Committees.” Campbell v.

       State, 19 N.E.3d 271, 275 n.3 (Ind. 2014). Although the pattern instructions are

       not formally approved by the Indiana Supreme Court, “they are tacitly


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 12 of 14
       recognized by Indiana Trial Rule 51(E).” Id. (citing Halliburton v. State, 1

       N.E.3d 670, 684 n.9 (Ind. 2013)). However, pattern jury instructions are not

       always upheld as correct statements of the law. Boney v. State, 880 N.E.2d 279,

       294 (Ind. Ct. App. 2008).


[24]   Here, Lloyd directs us to no authority that the failure to use a pattern jury

       instruction is necessarily error, much less fundamental error. To be sure, the

       pattern instruction, unlike the court’s instruction, places on the jury foreman the

       duty of ensuring that the alternate juror does not participate in the deliberations.

       Final Instruction No. 8, however, plainly instructed the jury that the alternate

       juror was not to take part in the deliberations. Since we presume that jurors

       follow the trial court’s instructions, Weisheit v. State, 26 N.E.3d 3, 20 (Ind.

       2015), and because Lloyd refers us to nothing that would suggest that the

       alternate did participate in the jury’s deliberations, we find no error,

       fundamental or otherwise, in the trial court’s Final Instruction No. 8.


                                                  Conclusion

[25]   At most, Lloyd has established relatively minor differences between the trial

       court’s instructions and the jury rules and pattern jury instructions. Even if it

       would have been the better practice to more closely adhere to the language of

       the jury rules and pattern instructions, Lloyd should have called these issues to

       the trial court’s attention by objecting to the instructions given. Because he did

       not object to the trial court’s instructions, any error is waived, and Lloyd has

       not met his considerable burden of demonstrating that the instructions given

       constituted fundamental error.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 13 of 14
[26]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016   Page 14 of 14
