MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 16 2019, 7:00 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sir Jackquarius Jaquan Lloyd,                            January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1135
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1611-MR-10



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019                Page 1 of 10
                                          Case Summary
[1]   The State charged Sir Jackquarius Jaquan Lloyd with three counts: murder,

      felony murder, and Level 3 felony attempted armed robbery. Following a jury

      trial, the jury found him guilty on all three counts. Lloyd now appeals, arguing

      that the trial court erred in instructing the jury that he was charged with armed

      robbery instead of attempted armed robbery and in providing jury-verdict forms

      for armed robbery instead of attempted armed robbery. Because there is no

      indication in the record that Lloyd or the jury was confused as to the nature of

      the charge or that Lloyd was misled as to the theory the State was pursuing, we

      do not reverse Lloyd’s conviction on Count III. However, we remand this case

      so that the trial court can amend the sentencing order to reflect that Lloyd was

      convicted of Level 3 felony attempted armed robbery.



                            Facts and Procedural History
[2]   For his role in the October 2016 shooting death of Tyler Hurtle in South Bend,

      the State charged Lloyd with three counts: Count I: murder, Count II: felony

      murder, and Count III: Level 3 felony attempted armed robbery. Appellant’s

      App. Vol. III pp. 65-66. The State also sought a sentencing enhancement

      pursuant to Indiana Code section 35-50-2-11, which allows for the imposition

      of “an additional fixed term of imprisonment” on top of the base sentence for

      certain offenses (including a felony that results in death) if the defendant

      knowingly or intentionally used a firearm in the commission of the offense.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 2 of 10
[3]   In particular, the charging information for Count III, “Attempted Armed

      Robbery,” provides:


              On or about October 6, 2016 in St. Joseph County, State of
              Indiana, Sir Jackquarius JaQuan Lloyd a/k/a Sir Patterson, did
              with the intent to commit the crime of Armed Robbery, fire
              multiple shots at Tyler Hurtle, which conduct constituted a
              substantial step toward the commission of the crime of Armed
              Robbery that is knowingly taking property, from another person
              or the presence of another person, by using force or by
              threatening the use of force, said act being committed while the
              defendant was armed with a deadly weapon.


      Appellant’s App. Vol. III pp. 65-66 (emphases added). During preliminary

      instructions, the trial court told the jury that Lloyd had been charged in Count

      III with armed robbery but then read the charging information for Count III,

      which set forth the offense of attempted armed robbery:


              Count III: On or about October 6, 2016, in St. Joseph County,
              State of Indiana, Sir Jackquarius Jaquan Lloyd did with the
              intent to commit the crime of Armed Robbery, fire multiple
              shots at Tyler Hurtle, which conduct constituted a substantial
              step toward the commission of the crime of Armed Robbery,
              that is, knowingly taking property from another person or the
              presence of another person by using force or threatening the use
              of force, said act being committed while the defendant was
              armed with a deadly weapon.


      Tr. Vol. II pp. 60-61 (emphasis added). The jury was also instructed on the

      definition of attempt. Id. at 61 (“A person attempts to commit a crime when,

      acting with the culpability required for the commission of the crime, he engages


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 3 of 10
      in conduct that constitutes a substantial step toward the commission of the

      crime.”). During opening statement, the State said that Lloyd and others went

      to the house where Tyler and others lived for a “weed rip, a robbery for

      marijuana.” Id. at 78. However, Tyler was shot right outside the house before

      any marijuana was taken, and Lloyd and the others fled in a car.


[4]   During closing argument, the State, on multiple occasions, referenced the

      offense of attempted armed robbery. For example, the State told the jury that

      Lloyd could be found guilty of Count III as a principal or an accessory:


              Sir Lloyd knowingly or intentionally took a substantial step
              toward the commission of the crime of Robbery. And that’s
              important. Because just thinking about it, that doesn’t get you
              there. That’s not enough to be convicted of a crime. Just
              thinking about it doesn’t get you there. But what does get you
              there is when you take a substantial step towards the commission
              of that crime. And we allege the substantial step of shooting is in
              there. That would be a big step towards the commission of the
              crime of Armed Robbery. And he did so while armed with a
              deadly weapon clearly. Now, again that’s as a principal.


              As an accessory, . . . Sir Lloyd knowingly aided, induced, or
              caused another person to commit Attempted Armed Robbery.
              And it is attempted because they were so bad at it they didn’t end
              up getting anything. So that’s why it’s Attempted Armed
              Robbery.


      Tr. Vol. V pp. 71-72; see also id. at 80 (“[A]re you firmly convinced the

      defendant attempted to commit Armed Robbery? I mean it’s just that

      simple.”). During final instructions, the trial court again told the jury that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 4 of 10
Lloyd had been charged in Count III with armed robbery but then instructed

the jury that there were two ways to find him guilty of attempted armed

robbery, as a principal or an accessory:


        One, the defendant, Sir Lloyd; two, acting with the culpability
        required to commit the crime of Robbery, which is defined as
        knowingly or intentionally taking property from another person
        or from the presence of another person by using or threatening
        the use of force on any person or by putting any person in fear
        while armed with a deadly weapon; three, engaged in conduct
        which constituted a substantial step toward the commission of
        the crime of Robbery; four, by shooting multiple times at Tyler
        Hurtle.


        Or, one, the defendant Sir Lloyd; two, acting with the
        culpability required to commit the crime of Robbery which is
        defined as knowingly or intentionally taking property from
        another person or from the presence of another person by using
        or threatening the use of force or by putting the person in fear
        while armed with a deadly weapon; three, aided, induced, or
        caused; four, another person to commit the offense of Attempted
        Robbery and whose conduct constituted a substantial step
        toward the commission of the crime of Robbery; five, by
        shooting multiple times at Tyler Hurtle.


Id. at 121-22 (emphases added); see also Appellant’s App. Vol. II p. 111 (written

jury instruction). The court then told the jury that if the State failed to prove

each of the elements of either set of circumstances beyond a reasonable doubt,

the jury must find him not guilty of armed robbery as charged in Count III. Tr.

Vol. V p. 122; Appellant’s App. Vol. II p. 112 (written jury instruction).

However, if the State proved each of the elements of either set of circumstances

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 5 of 10
      beyond a reasonable doubt, the jury may find him guilty of attempted armed

      robbery as charged in Count III. Tr. Vol. V p. 122; Appellant’s App. Vol. II p.

      112 (written jury instruction). The court again instructed the jury on the

      definition of attempt. Tr. Vol. V p. 124; Appellant’s App. Vol. II p. 114

      (written jury instruction).


[5]   Finally, the court read to the jury the two possible verdict forms for Count III:

      “Guilty of Count III: Armed Robbery” or “Not Guilty of Count III: Armed

      Robbery.” Tr. Vol. V pp. 130-31; Appellant’s App. Vol. II pp. 81, 85 (written

      verdict forms).


[6]   Following deliberations, the jury returned guilty verdict forms for Counts I-III.

      The jury also found that Lloyd was guilty of the firearm enhancement. At

      sentencing, the trial court called Count III “attempted robbery.” Tr. Vol. V pp.

      183 (“On the Attempted Robbery, I considered the fact that this was not your

      first robbery.”), 184 (“Because the reality is as you saw on October 6th that

      your attempted robbery was failing, you had options. You could have walked

      away. And instead you very deliberately chose to end a man’s life.”). The

      court merged Count II into Count I and sentenced Lloyd to sixty years on

      Count I, enhanced by fifteen years for the firearm enhancement. The court

      then sentenced Lloyd to a consecutive term of twelve years on Count III, for an

      aggregate term of eighty-seven years. The court issued a “Judgment of

      Conviction & Sentencing Order,” which provides that Lloyd was convicted of

      “Count III: Robbery, a Level 3 Felony.” Appellant’s App. Vol. II p. 21.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 6 of 10
[7]    Lloyd now appeals his conviction on Count III only.



                                  Discussion and Decision
[8]    Lloyd contends that the trial court erred in instructing the jury that he was

       charged with armed robbery instead of attempted armed robbery and in

       providing jury-verdict forms for armed robbery instead of attempted armed

       robbery. He asks us to reverse his conviction on Count III and “remand for a

       new determination.” Appellant’s Br. p. 17.


[9]    “It is a denial of due process of law to convict an accused of a charge not made.

       Where instructions are given or a verdict is rendered on a particular offense

       which is not the same as the offense charged reversal usually is warranted.”

       Maynard v. State, 508 N.E.2d 1346, 1351 (Ind. Ct. App. 1987) (citations

       omitted), reh’g denied, trans. denied. “However, an erroneous judgment of

       conviction of this type does not always require reversal. ‘Where the defendant

       has not been misled and it is evident that the issues joined under the charging

       information have been determined, a simple correction of the judgment, rather

       than reversal, is the appropriate remedy.’” Id. (quoting McFarland v. State, 179

       Ind. App. 143, 384 N.E.2d 1104, 1109-10 (1979)).


[10]   We begin by noting that Lloyd had the opportunity to review the jury

       instructions and verdict forms but raised no objections. See Tr. Vol. IV pp. 205-

       13 (final-instructions conference); Tr. Vol. V pp. 130-31 (reading of verdict

       forms). Had he done so, the trial court could have easily corrected these


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 7 of 10
       mistakes. While this failure typically waives the issue for review on appeal,

       Lloyd argues fundamental error.


[11]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied. Stated another way, to prevail

       under our fundamental-error analysis, the defendant must show that, “under

       the circumstances, the trial judge erred in not sua sponte raising the issue

       because [the] alleged errors (a) constitute clearly blatant violations of basic and

       elementary principles of due process and (b) present an undeniable and

       substantial potential for harm.” Id. (quotations omitted).


[12]   We find that McFarland is instructive here. In McFarland, the defendant was

       charged with attempted armed robbery; however, the jury returned a verdict

       form finding that the defendant was guilty of armed robbery. We held that

       reversal of the conviction was not required and instead remanded for correction

       of the judgment to conform to the charge of attempted armed robbery.

       McFarland, 384 N.E.2d at 1110. We reasoned that the defendant could not

       have been misled in his defense because the State did not introduce evidence of

       criminal activity unrelated to the charged offense. Id. Moreover, the charging

       information, which alleged attempted armed robbery, was read to the jury, and

       the jury instruction defining the elements of the crime properly followed the

       language of the statute and used the words “committed or attempted to

       commit” interchangeably. Id. Accordingly, we were “assured” that the jury

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 8 of 10
       made a determination with regard to the offense alleged in the charging

       information. Id.


[13]   The same can be said here. Lloyd argues that he and the jury were confused as

       to what he was charged with in Count III—armed robbery or attempted armed

       robbery. However, the charging information—which set forth the charged

       offense as attempted armed robbery—was read to the jury. In addition, the jury

       instructions set forth the elements for attempted armed robbery. See

       Appellant’s App. Vol. II pp. 111-12. Finally, during closing argument, the State

       referenced, on multiple occasions, the offense of attempted armed robbery.

       Thus, the jury was told that it had to find that Lloyd attempted to commit

       armed robbery in order to convict him on Count III. And, as the State claims

       on appeal, “at no point” was evidence presented that “[Lloyd], or his

       accomplices, ever took anything from Tyler to complete the robbery.”

       Appellee’s Br. p. 19. The trial court recognized as much during sentencing. See

       Tr. Vol. V p. 184. Although Lloyd argues that he was misled as to what theory

       the State was pursuing, the State made clear during closing argument that it was

       alleging two theories—principal and accessory—for each of the three counts

       and that the jury could “pick” which theory it wanted. Id. at 68. Accordingly,

       there is no indication in the record that the jury or Lloyd was confused as to the

       nature of the charge or that Lloyd was misled as to what theory the State was

       pursuing. We find that, as in McFarland, a simple correction of the judgment,

       rather than reversal, is the appropriate remedy here. We therefore remand this

       case to the trial court with instructions to amend the “Judgment of Conviction

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019   Page 9 of 10
       & Sentencing Order” to reflect that Lloyd was convicted of Level 3 felony

       attempted armed robbery.1


[14]   Reversed and remanded.


       Mathias, J., and Crone, J., concur.




       1
        There is no completed abstract of judgment in the record on appeal. If one was issued, the trial court
       should make sure that it reflects the proper conviction on Count III.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1135 | January 16, 2019                Page 10 of 10
