MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Aug 25 2016, 8:02 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
Thomas W. Vanes                                          Gregory F. Zoeller
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maurice Louis McCoy,                                     August 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1512-CR-2349
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1412-F3-20



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2349 | August 25, 2016     Page 1 of 5
                                          Case Summary
[1]   Maurice Louis McCoy (“McCoy”) appeals his conviction for Robbery, as a

      Level 3 felony.1 He presents the sole issue of whether the trial court abused its

      discretion in instructing the jury. We affirm.



                                   Facts and Procedural History
[2]   At around 5:30 p.m. on December 8, 2014, Thomas O’Neill (“O’Neill”) left his

      home in Hammond, Indiana to walk to a nearby convenience store. Before

      O’Neill was able to reach his destination, three young men exited a gray SUV

      and confronted O’Neill. One demanded that O’Neill “give it up” and a second

      man pulled out a handgun and pointed it at O’Neill’s stomach. (Tr. at 85.)

      Two of the men rifled through O’Neill’s pockets and retrieved $60.00. The

      young man with the handgun boasted to O’Neill: “we’re the new police around

      here now.” (Tr. at 94.)


[3]   When the young men left, O’Neill ran to a nearby auto sales business, opened

      the door, and yelled for someone to call 9-1-1. The responding officer took

      O’Neill to a nearby street where four individuals had been detained. O’Neill

      identified three of the four men as the men who had robbed him, and they were

      arrested.




      1
          Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2349 | August 25, 2016   Page 2 of 5
[4]   McCoy and his companions were charged with Robbery 2 and tried in a jury

      trial. At the trial, O’Neill identified McCoy as the robber “on my right side,

      going through my pockets.” (Tr. at 93.) McCoy was convicted as charged, and

      sentenced to ten years imprisonment. He now appeals.



                                     Discussion and Decision
[5]   At the conclusion of the evidence, one co-defendant proffered an instruction

      and the other two joined in requesting that instruction, providing as follows:

                 The indictment/information names multiple persons who are on
                 trial together. In reaching a verdict, however, you must bear in
                 mind that guilt is individual. Your verdict as to each Accused
                 must be determined separately with respect to him/her, solely on
                 the evidence, or lack of evidence, presented against him/her
                 without regard to the guilt or innocence of anyone else. In
                 addition, some of the evidence in this case was limited to one
                 Accused. Let me emphasize that any evidence admitted solely
                 against one Accused may be considered only as against that
                 person and may not in any respect enter into your deliberations
                 on any other accused.


      (App. at 106.)


[6]   The trial court elected to give the “multiple persons” instruction that the trial

      court considered “standard,” as follows:




      2
          The offense was elevated to a Level 3 felony because of the use of the handgun.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2349 | August 25, 2016   Page 3 of 5
              Although the defendants are being tried jointly, you must give
              separate consideration to each defendant. In doing so, you must
              analyze what the evidence in the case shows with respect to each
              defendant. Each defendant is entitled to have his case decided on
              the evidence and the law applicable to him.


      (Tr. at 350; App. at 53.)


[7]   The trial court has broad discretion in instructing the jury; we generally review

      that discretion only for an abuse. McCowan v. State, 27 N.E.3d 760, 763 (Ind.

      2015). In making a determination of whether an instruction was properly

      refused, we consider: (1) whether the tendered instruction correctly states the

      law; (2) whether there was evidence presented to support giving the instruction;

      and (3) whether the substance of the instruction was covered by the instructions

      given. Id. at 763-64. We will consider the instruction as a whole, and will

      reverse only if the instructions as a whole mislead the jury as to the law in the

      case. Id. at 764.


[8]   McCoy candidly acknowledges Indiana precedent contrary to his claim. See

      Buie v. State, 633 N.E.2d 250 (Ind. 1994), abrogated on other grounds. In Buie, our

      Indiana Supreme Court found an instruction substantially similar to that

      tendered by McCoy to be “at least arguably a correct statement of law.” Id. at

      255. However, the Court concluded that there was no error in the refusal of

      Buie’s tendered instruction because another instruction was given that

      “conveyed to the jury that culpability is individual.” Id.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2349 | August 25, 2016   Page 4 of 5
[9]    Upon acknowledging Buie, McCoy “urges this Court to re-examine the issue.”

       Appellant’s Br. at 6. According to McCoy, his tendered instruction was

       preferable to that given by the trial court because it used the term “accused” as

       opposed to “defendant,” consistent with the terminology in the United States

       Constitution and the Indiana Constitution. McCoy argues that “defendant”

       unacceptably implies a need on the part of an accused to disprove, excuse or

       justify his conduct.


[10]   Although McCoy expresses a preference for the term “accused” as opposed to

       “defendant,” we are mindful that our standard of review focuses not upon an

       isolated choice of words but rather, whether the jury was misled as to the law in

       the case. McCowan, 27 N.E.3d at 764. Here, the instruction given conveyed to

       the jury the premise that culpability is individual, and we are not at liberty to

       “re-examine” the law with disregard for our Indiana Supreme Court’s guidance.

       Minor v. State, 36 N.E.3d 1065, 1074 (Ind. Ct. App. 2015).



                                               Conclusion
[11]   McCoy has not demonstrated an abuse of discretion in the trial court’s

       instruction of the jury.


[12]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2349 | August 25, 2016   Page 5 of 5
