MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Nov 14 2016, 8:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Deandre L. Barnes,                                       November 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1601-CR-1
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1412-F3-19



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]       Page 1 of 9
                                       Statement of the Case
[1]   Deandre Barnes (“Barnes”) appeals the trial court’s refusal to give his proposed

      jury instruction during his trial for Level 3 felony robbery.1 He argues that the

      trial court’s final jury instruction did not cover the same substance as his

      proposed jury instruction and improperly referred to him as a “defendant”

      rather than an “accused.” Because we conclude that the trial court’s jury

      instruction covered the substance of Barnes’ proposed instruction and was

      proper, we affirm.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion when it refused to
                 give Barnes’ proposed jury instruction.

                                                     Facts
[3]   Around 5:30 p.m. on December 8, 2014, Thomas O’Neill (“O’Neill”) was

      walking on the streets near his house in Hammond, Indiana. As he was

      walking, he observed a gray SUV with three men around it. The three men

      then approached him and started to circle him. One man told him not to move,

      and another man pulled a gun out and pointed it at O’Neill’s midsection.

      O’Neill raised his hands, and one of the men—later identified as Barnes—and

      another man—later identified as Maurice McCoy (“McCoy”)—went through




      1
          IND. CODE § 35-42-5-1(1).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 2 of 9
      his pockets. Barnes took sixty dollars out of one of the pockets and then said “I

      got it” and walked away. (Tr. 89). One of the men followed him, and the other

      got into the SUV and drove away. O’Neill went to a shop on the street and

      asked a man there to call 9-1-1.


[4]   When police officers arrived at the scene, O’Neill described the SUV and the

      three men who had stopped him. The police searched the area, and Officer

      Brett Schloer (“Officer Schloer”) came across a gray or silver SUV. The driver,

      McCoy, exited the vehicle and “seemed lost.” (Tr. 204). Instead of walking

      into the house in front of which he had parked, he walked a couple of houses

      north, started to walk to the house there, then continued northwards again.

      Officer Schloer found this behavior suspicious and, since McCoy matched the

      description he had been given of the robbery suspects, began driving toward

      McCoy. At that point, McCoy began to run, and Officer Schloer parked and

      started to pursue him on foot. Eventually, another officer found McCoy hiding

      underneath a vehicle a half a block away from Officer Schloer. Officer Schloer

      then went back to the silver SUV and found a man named Dominique

      Randolph (“Randolph”) “trying to hide” in the vehicle. (Tr. 211).


[5]   Meanwhile, Officer Chris Berdine (“Officer Berdine”) was also searching the

      area. He had heard that one of the suspects was a black male with “dreadlock

      style hair wearing . . . a dark colored stocking cap.” (Tr. 232). As he was

      driving around the area, he saw someone who matched that description—

      Barnes—walking along the street. Officer Berdine detained Barnes, and then

      another officer took Barnes, McCoy, and Randolph to meet up with another

      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 3 of 9
      officer, who had O’Neill in his car. The officers conducted a “show-up”

      identification where they showed the three individuals to O’Neill, and O’Neill

      identified them as the men who had stopped him and taken his money. (Tr.

      180).


[6]   Subsequently, on December 10, 2014, the State charged Barnes, McCoy, and

      Randolph with Level 3 felony armed robbery. On July 6, 2015, Barnes filed a

      motion to sever his trial from that of his co-defendants, but the trial court

      denied the motion. The trial court then held a joint jury trial for the three co-

      defendants on October 26-28, 2015.

[7]   At the conclusion of the trial, Barnes submitted a proposed final jury instruction

      stating:

              The indictment/information names multiple persons who are on
              trial together. In reaching a verdict, however, you must bear in
              mind that guilt is individual. Your verdict as to each Accused
              must be determined separately with respect to him/her, solely on
              the evidence, or lack of evidence, presented against him/her
              without regard to the guilt or innocence of anyone else. In
              addition, some of the evidence in this case was limited to one
              Accused. Let me emphasize that any evidence admitted solely
              against one Accused may be considered only as against that
              person and may not in any respect enter into your deliberations
              on any other accused.

      (App. 111). The trial court had a jury instruction that addressed the issue of a

      joint trial, but Barnes argued that his proposed instruction “more clearly set[]

      out about as far as the evidence against anyone accused, versus another.” (Tr.

      351). He also stated that he “like[d] the language [in his proposed instruction]

      of the ‘accused’ as opposed to the ‘defendant’” in the trial court’s instruction.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 4 of 9
      (Tr. 351). The trial court refused to give Barnes’ proposed instruction,

      concluding that:

              Well, the fact of the matter is that whenever we’re dealing with a
              jury, of course we’re dealing with lay people; these are not
              attorneys. And the fact of the matter is, I think it’s clearer to
              them, and we continue to call the defendants the defendants,
              because that is how they know them as, although we’ve
              explained to them that an accused is presumed innocent. The
              Court will use this instruction because I think it is the most
              consistent with the way the trial has proceeded. So[,] we will not
              be giving the proposed, but rather the standard [instruction], as to
              the joint trial.

      (Tr. 352). Instead, the trial court instructed the jury as follows:

              Although the defendants are being tried jointly, you must give
              separate consideration to each defendant. In doing so, you must
              analyze what the evidence in the case shows with respect to each
              defendant. Each defendant is entitled to have his case decided on
              the evidence and the law applicable to him.

      (App. 56). Thereafter, the jury found Barnes and his co-defendants guilty as

      charged, and the trial court sentenced Barnes to twelve (12) years in the Indiana

      Department of Correction. Barnes now appeals.


                                                  Decision
[8]   On appeal, Barnes argues that the trial court abused its discretion when it

      refused his proposed jury instruction. He contends that the trial court’s

      instruction did not fully cover the substance of his proposed instruction.

      Specifically, he asserts that the trial court’s instruction did not instruct the jury

      that evidence offered against one accused could not be used in deliberations

      regarding another accused. He also argues that the trial court’s instruction
      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 5 of 9
       improperly referred to the defendants as “defendants” rather than “the

       accused.” (Barnes’ Br. 10).


[9]    Instructing a jury is left to the sound discretion of the trial court and is reviewed

       only for an abuse of discretion. Patterson v. State, 11 N.E.3d 1036, 1040 (Ind.

       Ct. App. 2014). On review, we evaluate a trial court’s refusal of a proposed

       jury instruction in three steps: (1) we determine whether the proposed

       instruction correctly states the law; (2) we determine whether the evidence

       supports giving the instruction; and (3) we determine whether the substance of

       the instruction was covered by other instructions. Id. “‘We consider jury

       instructions as a whole and in reference to each other and do not reverse the

       trial court . . . unless the instructions as a whole mislead the jury as to the law in

       the case.’” Id. (quoting Lyles v. State, 834 N.E.2d 1035, 1048 (Ind. Ct. App.

       2005) (internal quotes and citations omitted), trans. denied).


[10]   The State does not dispute that Barnes’ proposed jury instruction correctly

       states the law and was supported by the evidence. Accordingly, we need

       determine only whether the substance of Barnes’ proposed instruction was

       covered by other instructions. Barnes argues that the trial court’s instruction

       did not cover the substance of his proposed instruction because it did not

       instruct the jury that evidence offered against one accused could not be used in

       deliberations against another accused. Notably, he has not identified any

       evidence that was offered against only one accused. Regardless, the trial court’s

       jury instruction stated that “[e]ach defendant is entitled to have his case decided

       on the evidence and the law applicable to him” and that the jury “must give

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 6 of 9
       separate considerations to each defendant.” (App. 56). This instruction is

       equivalent to instructing the jury that evidence offered against one accused

       cannot be offered against another. It appropriately instructed the jury that

       evidence “applicable” to each defendant—in other words, “offered against each

       separate defendant”—should be considered only with respect to that defendant.

       (App. 56). Thus, the substance of Barnes’ proposed instruction was covered by

       the trial court’s instruction.


[11]   Next, Barnes argues that the final jury instruction improperly referred to the

       defendants as “defendants” rather than “the accused.” He contends that the

       term “defendant” was prejudicial because it implied that Barnes had to

       “actively defend against or attempt to disprove the charges asserted” and was

       not presumed innocent. (Barnes’ Br. 10). He also notes that the United States

       Constitution grants rights to an “accused” in a criminal proceeding but does not

       mention the term “defendant.”


[12]   As stated above, the trial court refused Barnes’ proposed instruction with the

       term “accused” because the term “defendant” had been used throughout the

       rest of the trial, and that was how the jury knew the defendants. We do not find

       this decision to be an abuse of discretion because, as the trial court stated, the

       jury knew the defendants as “defendants.” Further, the difference between the

       two terms is merely a matter of semantics, and the State of Indiana has a long

       history of referring to defendants as “defendants” in jury instructions. See, e.g.,

       Wilson v. State, 525 N.E.2d 619, 624 (Ind. Ct. App. 1988) (affirming the trial

       court’s jury instruction using the term “defendant”), reh’g denied. The Indiana

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 7 of 9
       pattern jury instructions are given “preferential treatment during litigation,”

       meaning that “the preferred practice is to use the pattern instructions,” and

       many pattern instructions also include the term “defendant.” Harrison v. State,

       32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015) (affirming the trial court’s use of a

       jury instruction based on an Indiana pattern jury instruction utilizing the term

       “defendant”), trans. denied. See also Indiana Pattern Jury Instructions—Criminal

       (2d ed. 1991), No. 2.11 at 43 (Stating that “[t]o convict the defendant, the State

       must have proved each of the following elements . . .”) (emphasis added).


[13]   Barnes challenges the use of the term “defendant” based on his interpretation

       that it could imply that he is not presumed innocent. However, we note that

       the trial court also instructed the jury that:

               . . . [T]he burden rests upon the State of Indiana to prove to each
               of you beyond a reasonable doubt every essential element of the
               crime charged. The charge which has been filed is the formal
               method of bringing the defendants to trial. The fact that a charge
               has been filed, the defendants arrested and brought to trial is not
               to be considered by you as any evidence of guilt.

       (App. 63). Also, the trial court instructed the jury that “[i]t is a fundamental

       concept in our law that the defendant comes into court presumed to be innocent

       of the charges, and this presumption remains throughout the trial of the case,

       until and unless it is overcome by competent proof of guilt beyond a reasonable

       doubt.” (App. 64). In light of these jury instructions, we conclude that the jury

       was properly instructed that Barnes was presumed innocent and that the trial

       court did not abuse its discretion by giving a jury instruction referring to Barnes



       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 8 of 9
       as a “defendant.” Accordingly, we conclude that the trial court did not abuse

       its discretion in instructing the jury.


[14]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-1 | November 14, 2016]   Page 9 of 9
