MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Sep 25 2018, 9:03 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
                                                         Lee M. Stoy, Jr.
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary Hamiter,                                            September 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-222
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen W. Marchal,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G15-1609-F6-36634




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018                Page 1 of 6
                                          Case Summary
[1]   Following a jury trial, Gary Hamtier was convicted of Class B misdemeanor

      disorderly conduct. Hamiter contends that the trial court committed

      fundamental error when it failed to instruct the jury that it was not to deliberate

      or reach any conclusions prior to the close of evidence before it was dismissed

      for a lunch break. Because we conclude that no fundamental error occurred,

      we affirm.



                            Facts and Procedural History
[2]   In 2016, Hamiter’s daughter was a student at Lawrence Central High School.

      On the morning of September 16, 2016, the school held a homecoming pep

      rally which included a dance performance. Hamiter attended the pep rally

      because his daughter was participating in the performance. After the

      performance, Hamiter became involved in a heated dispute with a student who

      Hamiter believed had called him a “b****.” Tr. Vol. II pp. 24–25. Hamiter

      asked for help from a nearby assistant principal. The assistant principal

      directed the student to class and Hamiter to the main office. The assistant

      principal asked a different assistant principal, Marlin Sam (“Sam”), to escort

      Hamiter to the office. Hamiter was extremely upset and loudly insisted that

      something be immediately done to the allegedly offending student.


[3]   As Sam walked Hamiter to the office, Hamiter tried to quickly walk toward the

      student who had insulted him. Sam positioned himself in front of Hamiter and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018   Page 2 of 6
      told him to keep walking to the office. In response, Hamiter came “chest to

      chest” with Sam and “bump[ed]” him, leading Sam to push Hamiter away and

      call security. Tr. Vol. II p. 50.


[4]   Lawrence Police Department Officer Tyler Morgan was sitting outside of the

      school in his car when he received the call. When Officer Morgan went inside,

      he observed Hamiter trying to walk around Sam while Sam was attempting to

      get Hamiter to go into the office. Hamiter was being very loud and hostile

      toward Sam. After several failed attempts to get Hamiter to go into the office

      on his own, Officer Morgan put Hamiter in handcuffs. Hamiter cooperated as

      Officer Morgan put the handcuffs on but was still very agitated.


[5]   Shortly thereafter, Officer Morgan was joined by another officer, and the two

      officers walked Hamiter to a conference room in the main office. (Tr. Vol. II p.

      66). Hamiter was still “extremely irate” and continued to insist that something

      be done immediately. Tr. Vol. II p. 91. When they reached the conference

      room, Hamiter continued to yell and refused to sit down. The yelling prompted

      the principal to enter the room to see what was happening. The officers

      eventually forced Hamiter into the chair.


[6]   A meeting was scheduled to occur in the conference room where Hamiter was

      being detained, so the officers were asked to take Hamiter across the hall. As

      the officers escorted Hamiter into another conference room, Hamiter yelled

      loudly, saying he was being abused by the police and begging those nearby to

      record a video of what was happening to him. The entire incident lasted almost


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018   Page 3 of 6
      an hour. Hamiter was eventually arrested.                 On September 17, 2016, Hamiter

      was charged with Level 6 felony criminal trespass, Class A misdemeanor

      resisting law enforcement, and Class B misdemeanor disorderly conduct.


[7]   A trial was held on January 10, 2018. At trial and after the jury had been

      impaneled, but before the presentation of the evidence, the trial court released

      the jury for lunch. Prior to the jury leaving, the trial court read to the jury the

      charging information but did not admonish the jury that they were not allowed

      to talk about the case with anyone. There was no objection by Hamiter to the

      trial court’s failure to admonish the jury.


[8]   At the end of the State’s presentation of evidence, Hamiter moved for a

      judgment on the evidence with regards to the Level 6 felony trespass charge.

      The trial court granted his motion. At the conclusion of the trial, the jury found

      Hamiter not guilty of Class A misdemeanor resisting law enforcement but

      guilty of Class B misdemeanor disorderly conduct. That same day, the trial

      court sentenced Hamiter to one hundred and eighty days of incarceration,

      suspended one hundred and seventy-six days, and gave Hamiter credit for four

      days served.



                                 Discussion and Decision
[9]   For the first time on appeal, Hamiter argues that the trial court erred by failing

      to admonish the jury before lunch. Hamiter contends that the trial court




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018   Page 4 of 6
       committed fundamental error by failing to instruct the jury that it was not to

       deliberate or reach any conclusions prior to being given the case.


               A claim that has been waived by a defendant’s failure to raise a
               contemporaneous objection can be reviewed on appeal if the
               reviewing court determines that a fundamental error occurred.
               The fundamental error exception is “extremely narrow, and
               applies only when the error constitutes a blatant violation of
               basic principles, the harm or potential for harm is substantial,
               and the resulting error denies the defendant fundamental due
               process.” The error claimed must either “make a fair trial
               impossible” or constitute “clearly blatant violations of basic and
               elementary principles of due process.” This exception is
               available only in “egregious circumstances.”


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal citations
       omitted).


[10]   Hamiter argues that he did not receive a fair trial and should receive a new trial

       due to the trial court’s failure to admonish the jury. Indiana Code section 35-

       37-2-4(a) states:


               The court shall admonish the jurors in the preliminary
               instruction, before separating for meals, and at the end of the
               day, that it is their duty not to converse among themselves or
               permit others to converse with them on any subject connected
               with the trial, or to form or express any opinion about the case
               until the cause is finally submitted to them.


[11]   While we acknowledge that the trial court failed to admonish the jury pursuant

       to the letter of Indiana Code section 35-37-2-4(a), we cannot conclude that its

       failure amounts to fundamental error for two reasons. First, after lunch, before

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018   Page 5 of 6
       the presentation of evidence, the jurors were given a preliminary instruction

       that they were not to form or express an opinion until after the case was given

       to them. Second, there has been no showing of harm or that the potential for

       harm was substantial. Hamiter points to nothing in the record indicating that

       the jury made up its mind during lunch, but before the evidence was presented

       to them. Hamiter merely speculates that the jury “may have conversed with

       each other or discussed their opinions about it while walking through the

       parking lot together[,]” and that “given the uncertainty of the juror’s

       unadmonished conduct during . . . lunch, [he] did not receive a fair trial.”

       Appellant’s Br. p. 11. The mere possibility that the jury may have conversed or

       discussed their opinions regarding Hamiter’s guilt before the presentation of

       evidence is insufficient to establish fundamental error. See generally Lyons v.

       State, 993 N.E.2d 1192 (Ind. Ct. App. 2013).


[12]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018   Page 6 of 6
