                                                                                FILED
                                                                            Oct 24 2018, 8:09 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Scott L. Barnhart                                          Curtis T. Hill, Jr.
      Brooke Smith                                               Attorney General of Indiana
      Keffer Barnhart LLP
      Indianapolis, Indiana                                      Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Malcolm R. DePriest,                                       October 24, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1176
              v.                                                 Appeal from the Vanderburgh
                                                                 Circuit Court
      State of Indiana,                                          The Honorable David D. Kiely,
      Appellee-Plaintiff                                         Judge
                                                                 The Honorable Michael J. Cox,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 82C01-1712-F4-7397



      Crone, Judge.


                                              Case Summary
[1]   Malcolm R. DePriest appeals his convictions for level 4 felony unlawful

      possession of a firearm by a serious violent felon (“SVF”) and class A

      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018                           Page 1 of 7
      misdemeanor resisting law enforcement. He argues that the trial court

      committed fundamental error by instructing the jury that there would be a

      second phase of the trial if the jury found beyond a reasonable doubt that he

      knowingly or intentionally possessed a firearm. Finding no error, we affirm.


                                  Facts and Procedural History
[2]   On September 28, 2017, an Evansville police officer responded to a report of an

      incident in progress involving a man with two guns. The officer saw DePriest

      exit a building, get on a bicycle, and ride away. The officer activated his

      emergency lights and followed DePriest. DePriest looked back twice at the

      officer. The officer briefly activated his siren twice. DePriest started peddling

      faster. The officer saw DePriest take a handgun from his waistband and throw

      it. DePriest was eventually stopped and arrested, and the handgun was

      recovered.


[3]   The State charged DePriest with level 4 felony unlawful possession of a firearm

      by a SVF and class A misdemeanor resisting law enforcement and alleged that

      he was a habitual offender. At trial, the trial court provided the jury with the

      following preliminary instruction:


              In Count 1, the Defendant is charged with Possession of a
              Firearm in Violation of Indiana Code. The trial will be in two (2)
              stages. In the first stage, there will be a trial on the issue of
              whether the Defendant knowingly or intentionally possessed the
              firearm as charged in Count 1. If you find beyond a reasonable
              doubt that the Defendant knowingly or intentionally possessed
              the firearm as charged in Count 1, there will be a second stage of
              the trial. In the second stage, there will be a trial of the issue
      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018        Page 2 of 7
              whether the Defendant committed a crime by possessing a
              firearm.


      Appellant’s App. Vol. 2 at 50. Neither party objected to the instruction.


[4]   The jury found that DePriest knowingly or intentionally possessed a firearm

      and found him guilty of resisting law enforcement. DePriest admitted that he

      was a SVF and a habitual offender. The trial court sentenced DePriest to six

      years for unlawful possession of a firearm by a SVF, with a seven-year

      enhancement for being a habitual offender and a concurrent one-year sentence

      for resisting law enforcement. This appeal ensued.


                                      Discussion and Decision
[5]   DePriest asserts that the preliminary instruction on bifurcation constituted

      fundamental error. We observe that “[t]he manner of instructing a jury is left to

      the sound discretion of the trial court. We will not reverse the trial court’s ruling

      unless the instructional error is such that the charge to the jury misstates the law

      or otherwise misleads the jury.” Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct.

      App. 2012) (citation omitted), trans. denied.


[6]   Because DePriest failed to object to the jury instruction, he may obtain reversal

      only if the instruction constituted fundamental error. See Knapp v. State, 9

      N.E.3d 1274, 1281 (Ind. 2014) (“Failure to object at trial waives an issue on

      appeal unless the appellant can show fundamental error.”), cert. denied (2015).

      The fundamental error exception to the contemporaneous objection rule is



      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018         Page 3 of 7
                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) (citations and quotation marks

      omitted).


[7]   Specifically, DePriest contends that the instruction constitutes fundamental

      error because “any reference to the second stage is prejudicial and improperly

      alludes to the automatic requirement of a second stage and defendant’s prior

      criminal history or the possibility that he or she has one.” Appellant’s Br. at

      9. We disagree. In Williams v. State, 834 N.E.2d 225 (Ind. Ct. App. 2005),

      another panel of this Court upheld a substantively identical instruction that

      stated:


                The Defendant is charged with Illegal Possession of a Firearm.
                The trial of charge [sic] will be in two (2) stages. In the first stage,
                there will be a trial on the issue of whether the Defendant
                knowingly or intentionally possessed the firearm as charged. If
                you find beyond a reasonable doubt that the defendant
                knowingly or intentionally possessed the firearm as charged,
                there will be a second stage of the trial. In the second stage, there
                will be a trial of the issue whether the Defendant committed a
                crime by possessing a firearm.


      Id. at 228. In concluding that the instruction was proper, the Williams court

      reasoned as follows:

      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018                  Page 4 of 7
              With bifurcation … comes the difficulty of explaining to a jury
              why the defendant is facing trial for merely possessing a firearm.
              To the extent the trial court’s instruction informed the jury that Williams
              was alleged to have possessed the firearm illegally for some reason, such
              was likely already the common sense conclusion of the jurors. The
              instruction also is clear that there would be a second phase of the
              trial if, and only if, the jury first concluded beyond a reasonable
              doubt that Williams had knowingly or intentionally possessed a
              firearm. It did not, as Williams argues, imply that a second
              phase of the trial was inevitable.


              …. Here, the trial court circumvented legitimate concerns
              regarding fairness by avoiding reference to Williams as a “serious
              violent felon” until after the jury had decided whether he had
              knowingly or intentionally possessed the AK-47. ….


              In sum, we conclude the trial court here struck the proper
              balance between advising the jury that Williams had indeed been
              charged with a firearm-related crime and avoiding identifying
              Williams as a “serious violent felon” from the outset of trial.
              Although current precedent does not require trial courts to
              bifurcate SVF trials, we believe that the bifurcation procedure
              serves the ends of justice in such trials and urge our state’s trial
              judges to use this procedure in SVF cases.


      Id. at 227-28 (emphasis added).


[8]   To the extent DePriest argues that mentioning a second phase of the trial

      suggests it is automatic, we reach the same conclusion as the Williams court.

      Here, the instruction clearly states that there would be a second phase of the

      trial only if the jury first concluded beyond a reasonable doubt that DePriest

      knowingly or intentionally possessed a firearm. As to DePriest’s argument that


      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018                   Page 5 of 7
      the instruction’s reference to a second phase suggests that the defendant has or

      might have a criminal history, we disagree. The instruction simply states that in

      the second stage the jury would consider whether the defendant committed a

      crime by possessing a firearm; there is no mention of any facts or circumstances

      or law as to what makes possessing a firearm a crime. We are unpersuaded that

      the instruction is prejudicial.


[9]   We observe that the Williams court’s reasoning in upholding the instruction and

      advocating bifurcation in SVF cases was endorsed by our supreme court in

      Russell v. State, 997 N.E.2d 352, 354 (Ind. 2013), which addressed a claim of

      improper trial bifurcation rather than the propriety of a jury instruction. In

      arguing that bifurcation was improper, Russell argued that “instructing the jury

      on the non-existent offense of ‘unlawful possession of a firearm’ was prejudicial

      because most jurors would know that possession of a firearm, by itself, is not a

      criminal offense [and] jurors would infer a second phase of trial.” Id. The

      supreme court concluded that this argument failed “[b]ecause the trial court

      instructed the jury to consider whether Russell had ‘unlawfully’ possessed a

      firearm and whether Russell was a SVF in two separate phases of trial.” Id. In

      reaching this conclusion, the supreme court observed that “this argument was

      rejected in Williams v. State, where the Court of Appeals held that by bifurcating

      the defendant’s SVF trial so that the jury would consider knowing possession of

      a firearm and the defendant’s SVF status separately, the trial court ‘avoid[ed]

      identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.’”

      Id. (quoting Williams, 834 N.E.2d at 228) (brackets in Russell).


      Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018         Page 6 of 7
[10]   Based on the foregoing, we conclude that the trial court did not commit error,

       let alone fundamental error, in giving the challenged instruction. Therefore, we

       affirm.


[11]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018     Page 7 of 7
