                                                           May 13 2013, 8:31 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                          GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

JOSEPH MATHENY,                                 )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A04-1207-CR-347
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Marc T. Rothenberg, Judge
                           Cause No. 49F09-1203-FD-19814



                                       May 13, 2013


                   OPINION ON REHEARING - FOR PUBLICATION


CRONE, Judge
       The State petitions for rehearing in Matheny v. State, 983 N.E.2d 672 (Ind. Ct.

App. 2013), in which we affirmed Matheny’s conviction for class D felony auto theft. In

so doing, we concluded that although the trial court erred in refusing Matheny’s tendered

jury instruction regarding the jury’s duty to conform the evidence to the presumption that

the defendant is innocent, that error was harmless. Id. at 680-81. The State asks us to

reconsider our conclusion that the trial court’s refusal of Matheny’s tendered instruction

constituted error in light of Santiago v. State, No. 45A03-1207-CR-304, 2013 WL

796066 (Ind. Ct. App. Mar. 5, 2013), and Albores v. State, No. 45A03-1207-CR-327,

2013 WL 1341563 (Ind. Ct. App. Apr. 4, 2013). In each of those cases, another panel of

this court concluded that the trial court did not err in refusing an instruction that was

conceptually similar to that tendered by Matheny. We grant the State’s petition solely to

clarify that our holding does not conflict with the holdings in those cases, and we affirm

our original opinion in all respects.

       In Robey v. State, 454 N.E.2d 1221 (Ind. 1983), our supreme court held that “[a]n

instruction … which advises the jury that the presumption of innocence prevails until the

close of the trial, and that it is the duty of the jury to reconcile the evidence upon the

theory of the defendant’s innocence if they could do so, must be given if requested.” Id.

at 1222 (emphasis added). However, the Robey court concluded that the trial court had

not erred in refusing the defendant’s tendered instruction because “the instructions given

adequately directed the jury to receive and evaluate the trial evidence while in the posture

of presuming the defendant innocent and demanding of the State that it produce strong

and persuasive evidence of guilt wholly at odds with innocence.” Id.; see also Farley v.

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State, 127 Ind. 419, 26 N.E. 898, 899 (1891) (holding that it is necessary upon request to

advise the jury that the presumption of innocence prevails until the close of trial and that

it is the jury’s duty to reconcile the evidence upon the theory of the defendant’s

innocence if they can do so).

       Matheny’s tendered Instruction No. 6 read,

              You are the exclusive judges of the evidence, the credibility of the
       witnesses and of the weight to be given to the testimony of each of them.
       In considering the testimony of any witness, you may take into account his
       or her ability and opportunity to observe; the manner and conduct of the
       witness while testifying; any interest, bias or prejudice the witness may
       have; any relationship with other witnesses or interested parties; and the
       reasonableness of the testimony of the witness considered in the light of all
       of the evidence in the case.
              You should attempt to fit the evidence to the presumption that the
       accused is innocent and the theory that every witness is telling the truth.
       You should not disregard the testimony of any witness without a reason and
       without careful consideration. If you find conflicting testimony you must
       determine which of the witnesses you will believe and which of them you
       will disbelieve.
              In weighing the testimony to determine what or whom you will
       believe, you should use your own knowledge, experience and common
       sense gained from day to day living. The number of witnesses who testify
       to a particular fact, or the quantity of evidence on a particular point need
       not control your determination of the truth. You should give the greatest
       weight to that evidence which convinces you most strongly of its
       truthfulness.

Appellant’s App. at 62 (emphasis added).

       In its appellee’s brief, the State argued that the trial court’s Instruction No. 14

adequately expressed the concept that the jury should attempt to fit the evidence to the

presumption that the accused is innocent, specifically directing our attention to the

following: “Where proof of guilt is by circumstantial evidence only, it must be so

conclusive and point so convincingly to the guilt of the accused that the evidence

                                             3
excludes every reasonable theory of innocence.” Appellant’s App. at 82. We disagreed.

Matheny, 983 N.E.2d at 680. Instruction No. 14 applies to circumstantial evidence only

and does not speak to the jury’s duty to weigh all the evidence and attempt to conform it

to the presumption of innocence if possible. In other words, it did not convey to the jury

the duty “to receive and evaluate the trial evidence while in the posture of presuming the

defendant innocent.” Robey, 454 N.E.2d at 1222.

      We reached the same conclusion in Simmons v. State, 179 Ind. App. 342, 385

N.E.2d 225 (1979). There, the defendant’s tendered instruction read,

             The law presumes the defendant to be innocent of the crime charged,
      and this presumption continues in his favor throughout the trial of this
      cause.

             It is your duty, if it can be reasonably and conscientiously done to
      reconcile the evidence upon the theory that the defendant is innocent and
      you cannot find the defendant guilty of the crime charged in the affidavit,
      unless the evidence satisfies you beyond a reasonable doubt of his guilt.

Id. at 343, 385 N.E.2d at 225 (quotation marks omitted). The trial court’s instruction on

circumstantial evidence stated, “You should not find a defendant guilty unless the facts

and circumstances proved exclude every reasonable theory of innocence.” Id. at 343 n.2,

385 N.E.2d at 225 n.2. The Simmons court concluded that “Contrary to the state’s

argument, we do not agree that this alone was sufficient to advise the jury of the

presumption of innocence.” Id., 385 N.E.2d at 225 n.2. In addition, the Simmons court

concluded that the instruction given on reasonable doubt did not adequately define the

presumption of innocence, explaining as follows:

            “(I)n a criminal case the term (presumption of innocence) does
      convey a special and perhaps useful hint over and above the other form of

                                            4
       the rule about the burden of proof, in that it cautions the jury to put away
       from their minds all the suspicion that arises from the arrest, the indictment,
       and the arraignment, and to reach their conclusion solely from the legal
       evidence adduced. In other words, the rule about burden of proof requires
       the prosecution by evidence to convince the jury of the accused’s guilt;
       while the presumption of innocence, too, requires this, but conveys for the
       jury a special and additional caution (which is perhaps only an implied
       corollary to the other) to consider, in the material for their belief, nothing
       but the evidence, i.e., no surmises based on the present situation of the
       accused. This caution is indeed particularly needed in criminal cases.”

Id. at 344, 385 N.E.2d at 226 (quoting Taylor v. Kentucky, 436 U.S. 478, 484-85 (1978)).

       Likewise here, the trial court’s instruction on the burden of proof in Instruction

No. 12, based on Indiana Pattern Jury Instruction No. 1.15, is insufficient to convey to the

jury that “the presumption of innocence prevails until the close of the trial, and that it is

the duty of the jury to reconcile the evidence upon the theory of the defendant’s

innocence if they could do so.” Robey, 454 N.E.2d at 1222.

       We now turn to the instructions in Santiago and Albores. The Santiago court

found that the concept that the jury should attempt to fit the evidence to the presumption

that the accused is innocent was adequately covered by the trial court’s instructions,

which included detailed instructions on reasonable doubt, apparently based on Indiana

Pattern Jury Instruction No. 1.15, as well as the following:

       ... it is a fundamental concept in our law that the defendant comes into court
       presumed to be innocent of the charges; and this presumption remains
       throughout the trial of the case until and unless it is overcome by competent
       proof of guilt beyond a reasonable doubt.

Santiago, 2013 WL 796066 at *2-3. Albores involved given instructions that were nearly

identical to those given in Santiago. 2013 WL 1341563 at *2-3. The Santiago and

Albores courts distinguished Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans.

                                             5
denied, in which we concluded that the trial court’s refusal of the defendant’s tendered

jury instruction on the presumption of innocence resulted in reversible error. The

Santiago and Albores courts explained that in Lee, the given instructions were not as

detailed and the jury was not instructed that the presumption of innocence prevails

throughout the trial. Santiago, 2013 WL 796066 at *3; Albores, 2013 WL 1341563 at

*3.

       As in Lee, the jury in this case was not instructed that the presumption of

innocence prevails throughout the trial. Accordingly, we reach a different conclusion

than Santiago and Albores because the instructions that the trial court gave the jury did

not adequately convey the substance of Matheny’s tendered instruction. It is worth

noting that in response to Lee, Indiana Pattern Jury Instruction No. 1.13 on the

presumption of innocence was amended such that, if requested by the defendant, then the

jury should also be instructed as follows: “You should reconcile the evidence on the

theory that the defendant is innocent if you can do so,” or “You should fit the evidence to

the presumption that the defendant is innocent if you can do so.” However, before Lee,

Indiana law required that “[a]n instruction … which advises the jury that the presumption

of innocence prevails until the close of the trial, and that it is the duty of the jury to

reconcile the evidence upon the theory of the defendant’s innocence if they could do so,

must be given if requested.” Robey, 454 N.E.2d at 1222. In this case, such an instruction

was requested, refused, and not adequately covered by the given instructions, and

therefore the trial court abused its discretion.



                                               6
       The State contends that, in contrast to Santiago and Albores, we used a “magic

words” approach and failed to consider the entirety of the jury instructions to determine

whether the substance of Matheny’s tendered instruction was nevertheless adequately

conveyed. Appellee’s Pet. for Reh’g at 2. See Walden v. State, 895 N.E.2d 1182, 1186-

87 (Ind. 2008) (“When evaluating the refusal of a tendered instruction, this Court is to

determine whether the substance of the instruction was covered by other instruction, not

whether other instructions contained the exact words.”). To the contrary, we did consider

the instructions the trial court gave the jury. The State’s argument simply ignores the fact

that the instructions given in this case were different from those given in Santiago and

Albores.

       The State also asserts that because we considered the instructions the trial court

gave the jury in concluding that the error was harmless, it must follow that the

presumption of innocence was adequately covered by the trial court’s given instructions.

We disagree. The State would be correct if all we considered were the given instructions,

but that is not the case. We considered “the totality of the circumstancesincluding all

the instructions to the jury, the arguments of counsel, whether the weight of the evidence

was overwhelming, and other relevant factorsto determine whether the defendant

received a constitutionally fair trial.” Matheny, 983 N.E.2d at 681 (quoting Kentucky v.

Whorton, 441 U.S. 786, 789 (1979)).

       Having clarified our holding, we affirm our original opinion in all respects.

KIRSCH, J., and MATHIAS, J., concur.



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