      MEMORANDUM DECISION
                                                                                 FILED
      Pursuant to Ind. Appellate Rule 65(D), this                            Jan 18 2018, 9:08 am
      Memorandum Decision shall not be regarded as
                                                                                 CLERK
      precedent or cited before any court except for the                     Indiana Supreme Court
                                                                                Court of Appeals
      purpose of establishing the defense of res judicata,                        and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Clint Richardson,                                        January 18, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1707-CR-1567
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Anne Flannelly,
      State of Indiana,                                        Magistrate.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               49G04-1608-F4-29699




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Clint Richardson appeals the jury’s determination that he is an habitual

      offender. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018        Page 1 of 8
                                                     Issue
[2]   Richardson raises one issue, which we restate as: whether the trial court

      committed fundamental error while instructing the jury during the habitual

      offender phase of the trial.


                               Facts and Procedural History
[3]   On the night of July 28, 2016, Alina Pawchareune was asleep at her rented

      house in Indianapolis. She was in a bedroom on the house’s second floor.

      When Pawchareune woke up to go to the bathroom, she noted that the light

      was on in the hallway, which was unusual. She further noticed a box had been

      moved from her bedroom to the hallway. Next, she saw that the door to the

      attic, which the landlord had left bolted shut for the last two years, had been

      forced open.


[4]   Pawchareune woke up her friend Nathan and a housemate. She and Nathan

      approached the attic door and heard rustling noises coming from upstairs.

      Pawchareune loudly asked if anyone was up there, and she next saw a shirtless

      stranger, later identified as Richardson, walking down the attic stairs.


[5]   Nathan closed the attic door and held it shut while Pawchareune called 911.

      Richardson kicked the door and asked to be let out. Pawchareune and Nathan

      ran into a bedroom and locked the door. Pawchareune’s housemate also locked

      himself in a bedroom. Pawchareune and Nathan soon heard someone going

      downstairs to the ground floor.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 2 of 8
[6]   Meanwhile, several police officers were dispatched to the house, including then-

      rookie Officer Thomas Thompson and his field training officer, Eric Amos.

      Officer Thompson approached the house’s front door and looked through a

      large window. He saw a shirtless person, later identified as Richardson,

      carrying a television through the house. Officer Thompson identified himself as

      a police officer and ordered Richardson to put his hands up and identify

      himself. Instead of complying, Richardson walked into a different room, and

      the officers lost sight of him. They decided against entering the house, choosing

      to set up a cordon instead.


[7]   Officer Scott Charleswood arrived separately, parking in an alley behind the

      house. He heard rustling from the house’s backyard, so he opened a gate in the

      privacy fence and entered the yard. Officer Charleswood saw heavy vegetation

      and a small pond as he approached the house. Next, he heard the splash of

      footsteps in the pond. Officer Charleswood looked around and saw a shirtless

      person, later identified as Richardson, moving toward the rear gate.


[8]   Officer Charleswood pointed a gun at Richardson and told him to stop.

      Richardson complied, and Officer Thompson walked to their location and put

      Richardson in handcuffs. Meanwhile, Officer Amos checked the house for

      additional suspects and informed the residents that a suspect was in custody.


[9]   Richardson’s pants were wet, and the officers found a television in a corner of

      the yard, near a wet footprint. The television belonged to Pawchareune’s

      housemate. In addition, the officers searched Richardson and found


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 3 of 8
       Pawchareune’s wallet. She had previously placed it in the box that she later

       found in the hallway.


[10]   The State charged Richardson with burglary, a Level 4 felony, and theft with a

       prior conviction, a Level 6 felony. The State further alleged Richardson was a

       habitual offender. The case was tried in three phases. During phase one, a jury

       determined Richardson was guilty of burglary as a Level 4 felony and was

       guilty of theft as a Class A misdemeanor. During phase two, Richardson

       waived his right to a jury trial on the issue of whether he had a predicate theft

       conviction. The court determined he had a predicate theft conviction and was

       therefore guilty of theft as a Level 6 felony. Finally, during phase three, the jury

       determined Richardson was a habitual offender. The court imposed a sentence,

       and this appeal followed.


                                    Discussion and Decision
[11]   Richardson argues the trial court erred during the habitual offender phase of the

       trial by failing to instruct the jury that, pursuant to Article I, section 19 of the

       Indiana Constitution, jurors have the right to determine the law and the facts.

       He concedes he did not raise that issue during the habitual offender phase, and

       he asks this Court to determine that the omission of the instruction amounted to

       fundamental error.


[12]   In general, a defendant must object to a deficiency in jury instructions, and

       failure to object will result in procedural default of appellate review of the issue.

       Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). An error may be fundamental,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 4 of 8
       and thus not subject to procedural default, if the error amounts to a substantial,

       blatant violation of basic principles. Id. (quotation omitted). The doctrine of

       fundamental error was originally designed and intended to allow only a certain

       category of egregious errors to be addressed on the merits on appeal despite a

       failure to object at trial. Turner v. State, 682 N.E.2d 491, 497 (Ind. 1997). The

       error must be substantial and blatant, and render the trial so unfair as to amount

       to a deprivation of defendant’s right to fundamental due process. Evans v. State,

       81 N.E.3d 634, 637 (Ind. Ct. App. 2017).


[13]   In this case, during phase one of the trial the court instructed the jury, in both

       the preliminary and final jury instructions, as follows: “Under the Constitution

       of Indiana the jury has the right to determine both the law and the facts. The

       Court’s instructions are your best source in determining the law.” Appellant’s

       App. Vol. II, pp. 127, 142.


[14]   Next, during the habitual offender phase, the court and the parties discussed the

       final jury instructions outside the presence of the jury. The court asked

       Richardson if he had any proposed final instructions, and he responded that he

       did not. The discussion subsequently turned to the trial court’s proposed

       Instruction Number 3, as follows:

               THE COURT: Instruction Number 3, because you are the
               judges of the law and the facts, even where you find that the fact
               of the prerequisite prior felony convictions is uncontroverted, you
               have the unquestioned right to find that the defendant is not an
               habitual offender. Any objection from the defense?
               [RICHARDSON]: No objection.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 5 of 8
               THE COURT: Any objection from the State?
               [THE STATE]: That’s a patterned [sic]? Allowing them to
               disavow a prior conviction if they don't approve of it?
               THE COURT: I’m handed this as a - as a pattern.
               [THE STATE]: This essentially states that even if I prove my
               case, they have the right to decide that it - he’s not an habitual
               offender.
               THE COURT: That’s what it says.
               [THE STATE]: I would object to Instruction Number 3.
               THE COURT: Okay. I take your objection under advisement.

       Tr. Vol. 2, pp. 139-40.


[15]   After discussing other instructions, the Court took a brief recess to consider

       Instruction Number 3. When proceedings resumed, the Court ruled as follows:

               With respect to Court’s final instructions to the jury on Phase 3,
               and specifically the State’s objection to Instruction Number 3. I
               searched the pattern instruction books and could not find that as
               a patterned [sic] instruction. I suspect that it might have been
               used in some other trial at some point. But it is clearly saying
               that even where you find its uncontroverted, you can ignore it
               and you can find that he’s not. And I’m going to grant the
               State’s objection. I’m not going to give that instruction because I
               don’t see it as a patterned instruction. I think it’s confusing.

       Id. at 141-42. The court gave the parties one final opportunity to raise issues

       regarding the instructions, and Richardson specifically declined.


[16]   During closing argument of the habitual offender phase, Richardson told the

       jury as follows: “I’m simply going to remind you that you’re the jury, and you




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 6 of 8
       have the power to decide. And you can go back there and deliberate and find

       him not guilty.” Id. at 156.


[17]   Initially, it is unclear whether the court committed an error, let alone

       fundamental error. The trial court correctly stated that Instruction Number 3

       did not follow the pattern jury instruction. See Indiana Pattern Jury

       Instructions-Criminal, No. 1.0300 (Indiana Judges Association 2014) (“Under

       the Constitution of Indiana you have the right to determine both the law and

       the facts. The Court’s/my instructions are your best source in determining the

       law.”).


[18]   In any event, any error was not fundamental. The jury had been instructed

       about its powers under Indiana Constitution Article I, section 19 during phase

       one of the trial, no more than several hours prior to the habitual offender phase.

       Further, Richardson reminded the jury during closing arguments of the habitual

       offender phase that it had the power to decide whether he was guilty or not

       guilty on the facts. In addition, the evidence against Richardson was thorough

       and consistent. We conclude the jury was sufficiently informed of the law, and

       any error related to Article I, section 19 did not deprive Richardson of

       fundamental due process. See Clark v. State, 561 N.E.2d 759, 764 (Ind. 1990)

       (failure to instruct jury about Article I section 19 powers during habitual

       offender phase of trial was not fundamental error; jurors were instructed on the

       issue during phase one of the trial).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 7 of 8
                                                Conclusion
[19]   For the reasons stated above, we affirm the judgment of the trial court.


[20]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1567 | January 18, 2018   Page 8 of 8
