MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Jun 29 2015, 8:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Gregory F. Zoeller
Nashville, Indiana                                        Attorney General of Indiana
                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

James G. Wilson,                                         June 29, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1409-CR-647
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Marc Rothenberg,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 49G02-1111-FA-80777




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015     Page 1 of 11
                                          Statement of the Case
[1]   James G. Wilson shot his wife, Jaime Wilson, in the stomach with a shotgun.
                                                                                              1
      He appeals his conviction by jury of attempted murder, a Class A felony. We

      affirm.


                                                             Issue
[2]   James raises one issue, which we restate as: whether the trial court committed

      fundamental error in instructing the jury.


                                   Facts and Procedural History
[3]   On the night of November 12, 2011, James and Jaime smoked crack cocaine at

      an apartment in Indianapolis. They argued, and Jaime left to spend the night at

      James’ mother’s home. That same night, Jaime’s brother, James Cart, tried to

      call her. James called Cart back, using Jaime’s phone. Cart asked James where

      was Jaime, and James replied that she was with Cart. After Cart explained that

      Jaime was not with him, James said, “next time I see her I have [a] shotgun and

      I’m on [sic] blow her up.” Tr. p. 189.


[4]   The next morning, Jaime went looking for James and found him sitting in his

      car. James was still angry when Jaime got into the car. As he drove to his




      1
          Ind. Code §§ 35-41-5-1 (1977), 35-42-1-1 (2007).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 2 of 11
      father’s house, James was “driving crazy” and verbally abused Jaime, calling

      her “scum, a slut, a crack whore, and everything else.” Id. at 164.


[5]   No one was at James’ father’s house when they arrived. Jaime attempted to

      leave, but James retrieved a shotgun, pointed it at her head, and threatened to

      shoot her in the back of her head if she tried to leave.


[6]   Next, James ordered Jaime to go into a bedroom. He ordered her to stand by

      the wall furthest from the door and aimed the gun at different parts of her body,

      “like he was looking for the best shot.” Id. at 168. In a loud voice, James

      continued to insult Jaime and accused her of stealing $2,000 from him and his

      father. She begged for her life, pleading with him to put the gun down.


[7]   When James stepped into the hallway, Jaime closed the bedroom door on the

      gun and tried to take it. After a short struggle, James regained control of the

      gun, and Jaime ended up in the bedroom with the door closed. She opened the

      door and came out because she “didn’t want the gun—the bullets to come

      through the, the door.” Id. at 170.


[8]   Jaime went to the kitchen and poured a glass of water. As she was standing by

      the refrigerator, James shot her in the stomach at close range, and she fell to the

      floor. Jaime told James he had shot her, but he said nothing. She crawled into

      the living room, leaving a trail of blood on the floor. James approached Jaime,

      grabbed her by the hair, and forced her to look at him. He then said, “I’m

      gonna do you and then I’m gonna do me.” Id. at 175. Jaime understood James



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 3 of 11
       to mean that he intended to kill her and then himself. She begged for her life

       again, saying that their three children needed her.


[9]    Jaime saw the front door open, and the next thing she remembered, she was

       outside, on the grass. James told her he was sorry and not to look at her

       wound. Next, he said that she would be alright and that he would go get help.


[10]   Meanwhile, a neighbor heard her dogs barking, so she looked outside and saw

       James and Jaime. Jaime was lying on the ground screaming, so the neighbor

       called 911.


[11]   Officer Paul Humphrey was dispatched to the house. Upon arriving, he saw

       Jaime lying in the front yard. There was blood on the front of her shirt. She

       was “terrified.” Id. at 149. Officer Humphrey asked what happened, and Jaime

       pointed at the house as she said, “he shot me.” Id. at 150. She also said his

       name was James. Officer Humphrey looked at the house and saw James

       walking through the living room toward the front door, holding the shotgun.

       Officer Humphrey drew his handgun and told James to drop his weapon.

       James did not immediately comply until another officer arrived and, with both

       officers’ weapons drawn, they ordered him to put down the gun. The officers

       took James into custody.


[12]   Jaime was taken to the hospital. She had extensive internal as well as external

       bleeding, and her blood pressure was dangerously low. Doctors performed

       emergency surgery, opening her abdominal cavity to assess her injuries. The

       shotgun blast damaged her colon, small intestine, ureter, and muscles and blood

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 4 of 11
       vessels adjacent to her spine. Some of the pellets went almost all of the way

       through her body, resulting in bruising to the skin on her back. Jaime was in

       the hospital for thirty-four days, during which time she was subjected to five

       major surgeries to reconstruct her gastrointestinal tract. She was on a ventilator

       for twelve days and received artificial nutrition. She would have died if she had

       not received medical care immediately.


[13]   Police collected a shotgun and a spent shell from the house. Subsequent testing

       revealed that the shotgun had fired the shell. In addition, James’ fingerprint

       was found on the shotgun.


[14]   The State charged James with attempted murder. The case was delayed

       because the trial court deemed James incompetent to assist with his defense and

       ordered him sent to Logansport State Hospital for treatment. Once James was

       deemed to be competent, the case resumed, and James requested leave to

       represent himself at trial. The trial court granted James’ request and appointed

       standby counsel.


[15]   At the beginning of the trial, the court submitted proposed preliminary jury

       instructions to the parties. Neither party objected to any of the instructions.

       The court read the preliminary instructions to the jury and gave the jurors

       notebooks that included copies of those instructions.


[16]   Later during the trial, outside the presence of the jury, the court raised a

       question about Preliminary Instruction 5a, which set forth the elements of the

       offense of attempted murder. The court asked the parties whether they thought

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 5 of 11
       the instruction was erroneous because it included the word “knowingly.” Id. at

       249-50. The court further stated that it would permit a revision to the

       instruction, if the parties requested it. After further discussion, the State

       requested a revision to the instruction to remove the word “knowingly.” Id. at

       257. James objected to the State’s motion. The court decided not to take

       further action on the instruction at that time.


[17]   After the State rested, the court held a hearing outside of the presence of the

       jury. During the hearing, the State again asked that the preliminary instruction

       be revised to remove the word “knowingly.” Id. at 320. James objected again.

       The court overruled James’ objection.


[18]   When the jury returned to the courtroom, the court instructed them to remove

       their copies of Preliminary Instruction 5a from their notebooks. The bailiff took

       away those copies and distributed to the jurors a revised version of that

       instruction that omitted the word “knowingly.” Id. at 327. Next, the court read

       the revised instruction to the jury. James testified in his own defense.


[19]   The jury determined that James was guilty of attempted murder. The trial court

       sentenced him per the jury’s verdict. This appeal followed.


                                    Discussion and Decision
[20]   James argues that the trial court committed reversible error in presenting the

       original version of Preliminary Instruction 5a to the jury in the first place. He

       acknowledges that the court later revised the instruction and gave a corrected,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 6 of 11
       revised instruction to the jury, but he maintains the court’s actions were

       insufficient to correct the error.


[21]   In general, instructing a jury is left to the sound discretion of the trial court, and

       we review its decision only for an abuse of discretion. Winkleman v. State, 22

       N.E.3d 844, 849 (Ind. Ct. App. 2014), trans. denied. Here, James concedes that
                                                                                    2
       he did not initially object to Preliminary Instruction 5a. To the contrary, he

       objected only when the State moved to revise it.


[22]   James now argues that the presentation of the original version of Preliminary

       Instruction 5a to the jury amounted to fundamental error. The doctrine of

       fundamental error is an extremely narrow exception to the waiver rule. Id.

       Under fundamental error review, a defendant must show that an error was so

       misleading as to make a fair trial impossible or blatantly violate basic due

       process. Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014), cert. denied, 135 S. Ct.

       978, 190 L. Ed. 2d 862 (2015). We look at the alleged error in the context of all

       that happened and all relevant information given to the jury—including

       evidence submitted at trial, closing argument, and jury instructions—to

       determine whether the error, if any, had such an undeniable and substantial




       2
         James states that he has been diagnosed with numerous mental illnesses and claims that he “did not appear
       to be capable of raising a correct and coherent objection.” Appellant’s Br. p. 16. He does not claim on
       appeal that the trial court erred in determining that he was mentally competent to participate in court
       proceedings, nor does James assert that the trial court erred in allowing him to waive his right to counsel and
       proceed pro se at trial.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015                Page 7 of 11
       effect on the jury’s decision that a fair trial was impossible. Winkleman, 22

       N.E.3d at 849.


[23]   The original version of Preliminary Instruction 5a, as read to the jurors and

       presented to them in their notebooks, provided as follows:


               The crime of attempted murder is defined as follows:
               A person attempts to commit a murder when, acting with the
               specific intent to kill another person, he engaged in conduct that
               constitutes a substantial step toward killing that person.
               Before you may convict the Defendant of Attempted Murder, the
               State must have proved each of the following elements beyond a
               reasonable doubt:
               1.       The Defendant, James Wilson
               2.       Acting with the specific intent to kill Jaime Wilson
               3.       Did knowingly shoot a deadly weapon, that is: a shotgun,
                        at and against the person of Jaime Wilson
               4.       which [sic] was conduct constituting a substantial step
                        toward the commission of the intended crime of killing
                        Jamie Wilson
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the defendant not guilty of the
               crime of Attempted Murder, a Class A Felony, as charged in
               Count I.
       Appellant’s App. p. 142.


[24]   The revised instruction omitted the word “knowingly.” Tr. p. 327. Wilson

       argues that the use of the word “knowingly” initially misinformed the jury of

       the elements of the offense that the State had to prove to obtain a conviction.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 8 of 11
[25]   However, even if the original instruction misstated the law, we cannot say that

       the error was so misleading as to make a fair trial impossible or blatantly violate
                                3
       basic due process. The word “knowingly” was used once and was included

       only in Preliminary Instruction 5a in reference to the element related to the

       shooting of the shotgun. The original version of Preliminary Instruction 5a also

       advised the jury twice that the State was required to prove that James had the

       “specific intent” to commit murder. Appellant’s App. p. 142. A jury could

       have concluded that the original version of Preliminary Instruction 5a favored

       James because the instruction could be read as requiring the State to prove two

       separate elements of mental states. In addition, Preliminary Instruction 5b

       defined “intentionally” for the jury. Id. at 143.


[26]   Furthermore, the trial court gave the jury a written revised instruction to correct

       any error. An Indiana statute forbids revision of jury instructions during trial,

       but only if the trial court issues the revision orally. See Ind. Code § 35-37-2-2

       (1985) (“A charge of the court . . . may not be orally qualified, modified, or in

       any manner orally explained to the jury by the court.”). The trial court has

       inherent authority to correct discretionary rulings, such as jury instruction

       matters, as long as a case is pending resolution. See Fiandt v. State, 996 N.E.2d

       421, 424 (Ind. Ct. App. 2013) (trial court had discretion to correct erroneous

       grant of jury trial request while case was pending).




       3
         The State argues that the original version of Preliminary Instruction 5a, as given to the jury, was not
       erroneous. It is unnecessary for us to address this point.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015                 Page 9 of 11
[27]   Next, we presume that the jury follows the trial court’s instructions. Morgan v.

       State, 903 N.E.2d 1010, 1019 (Ind. Ct. App. 2009), trans. denied. The trial court

       told the jurors to rip the prior version of Preliminary Instruction 5a out of their

       notebooks, give it to the bailiff, and replace it with the revised version to be

       distributed to them by the bailiff. After reading the revised instruction to the

       jury, the court said, “And again ladies and gentlemen, you should insert that

       where the one that was taken out and that will be taken back with you and

       considered along with the final instruction once those are given.” Tr. p. 329.

       There is no evidence that the jury failed to comply with the court’s directives.


[28]   During closing argument, the State informed the jury that it was required to

       prove beyond a reasonable doubt that James specifically intended to kill Jaime.

       The prosecutor said that when James pointed the shotgun at Jaime, “That’s the

       moment of intent. That was when he intended to kill her.” Id. at 361.


[29]   Finally, the evidence against James is extensive. The night before the shooting,

       James told Cart that he had a shotgun and would “blow her up.” Tr. p. 189.

       Jaime testified in detail as to the surrounding facts and circumstances leading

       up to James shooting her. Officer Humphrey said that Jaime indicated that

       James shot her. The officers saw James wielding the shotgun at the scene of the

       shooting. Forensic scientists found James’ fingerprint on the shotgun and

       determined that the shotgun had fired the shell that was found inside the house.


[30]   Based on these considerations, James has failed to establish fundamental error

       in relation to Preliminary Instruction 5a. See Perez v. State, 872 N.E.2d 208, 212


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 10 of 11
       (Ind. Ct. App. 2007) (any error from a jury instruction that included a reference

       to a “knowing” mens rea was not fundamental error in light of the other

       instructions), trans. denied.


                                                Conclusion
[31]   For the reasons stated above, we affirm the judgement of the trial court.


[32]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-647 | June 29, 2015   Page 11 of 11
