MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Apr 09 2020, 10:31 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
Daniel I. Hageman                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Nathan Wilson,                                     April 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2156
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable William J. Hughes,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29D03-1905-F6-4117



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020                Page 1 of 7
                                                   Case Summary
[1]   Jeremy Nathan Wilson (“Wilson”) was convicted of Domestic Battery

      Resulting in Moderate Bodily Injury, as a Level 6 felony,1 and adjudicated a

      habitual offender.2 Wilson appeals, arguing that the failure to give a specific

      type of jury instruction on unanimity amounted to fundamental error.


[2]   We affirm.



                                 Facts and Procedural History
[3]   On May 29, 2019, Wilson and his brother showed up at an apartment rented to

      Danielle Fenters (“Fenters”), whom Wilson had dated. While Wilson’s brother

      waited in a car outside, Wilson—who had been drinking alcohol—entered the

      apartment. Wilson yelled at Fenters and became violent. After throwing an

      object at a television, Wilson cornered Fenters and began hitting her. Wilson

      bit Fenters on the back. He dragged Fenters by her hair. At one point, Wilson

      asked Fenters to retrieve a knife. Fenters complied. Wilson then tried to stab

      Fenters. He slashed open cushioning on a couch and a recliner. Eventually,

      Wilson held onto Fenters near the open apartment door. Fenters threw her

      weight against Wilson, causing them to tumble down a flight of stairs. Fenters

      ran outside and asked Wilson’s brother for a ride. Fenters then called someone




      1
          Ind. Code § 35-42-2-1.3(a)(1), (b)(3).
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 2 of 7
      from work, who picked up Fenters and brought her to the hospital. Fenters

      received three stitches on her chin. Her forehead was swollen and she had

      several abrasions, a bite mark on her back, and a bent fingernail. The police

      were contacted, and Wilson was found inside the apartment with a fresh scrape.


[4]   The State filed a multicount information against Wilson and alleged that

      Wilson is a habitual offender. A jury trial was held in July 2019. An initial

      guilt phase concerned two counts: (1) Domestic Battery Resulting in Moderate

      Bodily Injury, as a Level 6 felony; and (2) the lesser-included offense of

      Domestic Battery, as a Class A misdemeanor.3 The court instructed the jury—

      without objection from Wilson—and the jury found Wilson guilty of both

      offenses. Upon the State’s request, the trial court dismissed the only remaining

      count. The court then held a jury trial on the enhancement, with the jury

      determining that Wilson is a habitual offender. The trial court later merged the

      misdemeanor count with the felony count. It ultimately sentenced Wilson to

      two and one-half years for the felony with a separate six-year enhancement.


[5]   Wilson now appeals.



                                      Discussion and Decision
[6]   Wilson argues that the jury was not adequately instructed on jury unanimity.

      Because Wilson did not raise this issue in an objection, he has waived the




      3
          I.C. § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 3 of 7
      argument and we review only for fundamental error. See Batchelor v. State, 119

      N.E.3d 550, 559 (Ind. 2019). Under this standard, we afford relief only if the

      error “‘made a fair trial impossible’ or if it clearly and blatantly violated basic

      principles of due process resulting in ‘undeniable and substantial potential for

      harm.’” Id. (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)).


[7]   In Indiana, a verdict in a criminal case must be unanimous. Fisher v. State, 291

      N.E.2d 76, 82 (1973). Although there must be jury unanimity “as to the

      defendant’s guilt,” jury unanimity “is not required as to the theory of the

      defendant’s culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006).

      Moreover, certain cases present problems with jury unanimity. See Baker v.

      State, 948 N.E.2d 1169, 1178 (Ind. 2011). For example, in Baker, the defendant

      was charged with a single count of child molestation with respect to each

      victim, but the jury heard evidence of multiple distinct acts of molestation

      concerning each victim. Id. at 1177. In resolving Baker, the Indiana Supreme

      Court recognized that where “evidence is presented of a greater number of

      separate criminal offenses than the defendant is charged with,” a basic

      unanimity instruction is insufficient. Id. at 1175. “This is because, absent a

      more particular instruction, the jury could unanimously agree that the

      defendant was guilty, yet, in doing so, rely on different acts in evidence.”

      Benson v. State, 73 N.E.3d 198, 202 (Ind. Ct. App. 2017), trans. denied. Put

      differently, “the State could point to multiple, separate criminal acts and the

      jury could convict, despite it being divided about which acts occurred.” Id. To

      remedy this issue, the Baker Court held that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 4 of 7
              [t]he State may in its discretion designate a specific act (or acts)
              on which it relies to prove a particular charge. However if the
              State decides not to so designate, then the jurors should be
              instructed that in order to convict the defendant they must either
              unanimously agree that the defendant committed the same act or
              acts or that the defendant committed all of the acts described by
              the victim and included within the time period charged.


      Baker, 948 N.E.2d at 1177.


[8]   Here, the court gave a general unanimity instruction—not the specific

      instruction identified in Baker. Wilson argues that the specific instruction was

      required. In so arguing, he directs us to a jury instruction on the elements of

      Domestic Battery Resulting in Moderate Bodily Injury:


              Before you may convict the Defendant, the State must have
              proved the following elements beyond a reasonable doubt:


                       1. The Defendant


                       2. touched Danielle Tomi Fenters


                       3. a family or household member


                       4. in a rude, angry or insolent manner


                       5. by striking or punching or scratching or biting


                       6. resulting in moderate bodily injury to Danielle Tomi
                       Fenters.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 5 of 7
       App. Vol. 2 at 87. Wilson also points out that a preliminary jury instruction

       referred to allegations of moderate bodily injury through “laceration requiring

       stitches or scratches or bleeding or swelling or redness.” Id. at 62.


[9]    Wilson focuses on disjunctive language in the instructions, arguing that the jury

       could have found him guilty “while remaining divided as to whether he

       punched or struck or scratched or bit Fenters.” Br. of Appellant at 12. He also

       asserts that the jury could have found him guilty “while being divided as to

       which of the disjunctively listed injuries Fenters sustained or whether those

       injuries rose to the level of moderate bodily injury.” Id. Wilson contends that

       “some jurors could have agreed that Wilson scratched Fenters resulting in

       redness while others disputed that redness rose to the level of moderate bodily

       injury and instead relied on other acts resulting and [sic] other injuries to convict

       Wilson.” Id. at 12-13. Wilson makes similar arguments about disjunctive

       language in instructions concerning the lesser-included offense of Domestic

       Battery. Wilson ultimately asserts that the trial court failed to give “an

       adequately detailed” instruction on jury unanimity. Id. at 12.


[10]   “[T]he State is permitted to ‘present[] the jury with alternative ways to find the

       defendant guilty as to one element.’” Baker, 948 N.E.2d at 1175 (alteration in

       original) (emphasis removed) (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind.

       1996)). When the State does so, the concerns identified in Baker are not present

       because jury unanimity is not required as to the theory of the defendant’s

       culpability. See id. We therefore disagree that a Baker type of instruction was

       required. In any case, even if we assume that the unanimity instruction was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 6 of 7
       deficient, this type of error is harmless where—as here—the case (1) turned

       largely on whether the jury found the victim to be credible and (2) the jury

       resolved the basic credibility dispute against the defendant. See id. at 1179; see

       also Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015), trans. denied. Thus,

       even assuming error, Wilson has not demonstrated fundamental error.


[11]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2156 | April 9, 2020   Page 7 of 7
