FOR PUBLICATION
                                                      FILED
                                                    Aug 21 2012, 9:13 am


                                                           CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

LORINDA MEIER YOUNGCOURT                    GREGORY F. ZOELLER
Lawrence County Public Defender             Attorney General of Indiana
Bedford, Indiana
                                            KARL M. SCHARNBERG
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

JASON FIELDS,                               )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )       No. 47A04-1110-CR-577
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE LAWRENCE SUPERIOR COURT
                        The Honorable William G. Sleva, Judge
                           Cause No. 47D02-1105-FB-513



                                  August 21, 2012


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

          Jason Fields appeals his convictions       for two counts of       dealing in

methamphetamine, as Class B felonies, following a jury trial. Fields presents a single

issue for review:      whether the trial court abused its discretion when it answered a

question from the jury about the meaning of one of the final instructions.

          We affirm.

                         FACTS AND PROCEDURAL HISTORY

          In March and April 2011, Fields lived with Joseph Roe. On April 4, at Roe’s

request, Fields purchased methamphetamine from Shon Michaels. On April 6, Fields

again purchased methamphetamine from Michaels at Roe’s request. Unbeknownst to

Fields, Roe was working as a confidential informant for the Bedford Police Department,

and both transactions were controlled buys made with marked money provided by the

police.

          On May 6, the State charged Fields with two counts of dealing in

methamphetamine, as Class B felonies. The trial court denied the State’s subsequent

motion to elevate the offenses to Class A felonies. A three-day trial was conducted

September 27 through 29. During deliberations, the jury submitted a question to the

judge, asking for clarification of part of final instruction number 11. That instruction

reads:

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

                1.     The Defendant
                2.     knowingly delivered
                3.     methamphetamine, pure or adulterated.
                                             2
                                           AND

       The State must have proved beyond a reasonable doubt that:

              1.      that [sic] the prohibited conduct of the Defendant was
              not the product of [a law enforcement officer] [or] [a law
              enforcement officer’s agent] using persuasion or other means
              likely to cause the Defendant to engage in the conduct, or
              2.      that [sic] the Defendant was predisposed to commit the
              offense.

             Keeping in mind that conduct merely affording a person an
       opportunity to commit the offense does not constitute entrapment.

              If the State failed to prove each of the above referenced elements
       beyond a reasonable doubt, including the elements relating to entrapment,
       you should find the Defendant not guilty of dealing in methamphetamine, a
       Class “B” Felony for the Count under consideration.

Appellant’s App. at 116. The jury’s question asked: “On page 11[.] The State must

have proved beyond a reasonable doubt that question 1 or 2 [sic]. Do both 1 and 2 we

have to agree or on just one of them.” Id. at 123. The trial court recalled the jury and, in

the presence of the parties and their counsel, answered the jury’s question as follows:

       Okay for the record the Jury is reassembled, everyone else is also in the
       courtroom. Members of the Jury, my answer to your question is very
       specific and you’re [sic] question was very specific as to instruction eleven
       (11), the second part. And as you know the second part has one (1) or two
       (2). It is not both, one (1) or. Either/or. Okay, alright. So having done
       that I’ll send you back out.

Transcript at 550.

       Fields moved for a mistrial for “changing instructions.” Id. at 549. The trial court

denied that motion. The jury subsequently returned a verdict finding Fields guilty of both

counts of dealing in methamphetamine, as Class B felonies. The court entered judgment

of conviction accordingly and sentenced Fields to ten years, enhanced by eight years for
                                             3
aggravating circumstances, for an aggregate sentence of eighteen years with two years

probation, to be served concurrently. Fields now appeals.

                            DISCUSSION AND DECISION

       Fields appeals from the denial of his motion for a mistrial following the trial

court’s response to a jury question after deliberations had begun. On appeal, the trial

court’s discretion in determining whether to grant a mistrial is afforded great deference

because the trial court is in the best position to gauge the surrounding circumstances of an

event and its impact on the jury. McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004),

cert. denied, 546 U.S. 831 (2005). We therefore review the trial court’s decision solely

for abuse of discretion. Id. After all, “a mistrial is an extreme remedy that is only

justified when other remedial measures are insufficient to rectify the situation.” Id.

(citation and internal quotation marks omitted).

       Fields contends that the trial court erred when it answered the question the jury

submitted after deliberations had begun, thereby “modifying” the final jury instructions.

Appellant’s Brief at 11.    Generally, “[o]nce deliberations commence, the trial court

should not give any additional instructions.” Cabell v. State, 461 N.E.2d 1101, 1102

(Ind. 1984). “This rule precludes the trial court from giving any special emphasis,

inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility

that the additional instruction(s) may tell the jury what it ought to do concerning that

issue.” Id.

       “The generally accepted procedure in answering a jury’s question on a matter of

law is to reread all instructions in order to avoid emphasizing any particular point and not


                                             4
to qualify, modify, or explain its instructions in any way.” Martin v. State, 760 N.E.2d

597, 601 (Ind. 2002). However, our supreme court has permitted departure from this

procedure when a trial court is faced with an omitted and necessary instruction or must

correct an erroneous instruction, as long as it is fair to the parties in the sense that it

should not reflect the judge’s view of factual matters. Id. “[I]t is only when the jury

question coincides with an error or legal lacuna in the final instructions that a response

other than rereading from the body of final instructions is permissible.” Jenkins v. State,

424 N.E.2d 1002, 1003 (Ind. 1981) (alterations in original).

       Still, a trial court is not required to provide information automatically and

mechanically every time the jury requests it. Henri v. Curto, 908 N.E.2d 196, 205 (Ind.

2009) (quotation marks omitted). Rather, it has discretion to determine whether a jury

question relates to the jury’s desire to be informed as to a point of law arising in the case.

Id. If the court determines that the jury wishes to be so informed, the court is required to

answer the question after notice to the parties or their attorneys. Id. (citations omitted).

       Indiana Code Section 34-36-1-6 governs the procedure a trial court must follow

when answering a jury question submitted during deliberations. That statute provides:

       If, after the jury retires for deliberation:

              (1)     there is a disagreement among the jurors as to any part
                      of the testimony; or
              (2)     the jury desires to be informed as to any point of law
                      arising in the case;

       the jury may request the officer to conduct them into court, where the
       information required shall be given in the presence of, or after notice to, the
       parties or the attorneys representing the parties.



                                                5
Ind. Code § 34-36-1-6. The statutory phrase “any point of law arising in the case” is

construed narrowly and mandates that the trial court inform counsel and provide a

discrete answer only when the jury question “points up ‘an error or legal lacuna in the

final instructions.’” Henri, 908 N.E.2d at 205 (citing Foster v. State, 698 N.E.2d 1166,

1171 (Ind. 1998)).

       Once the trial court, in the exercise of its discretion, has determined that a
       question posed . . . by the jury relates to . . . the jury’s “desire to be
       informed as to any point of law arising in the case,” Ind. Code § 34-36-1-6
       (emphasis added), the court then must supply the requested information, to
       the extent that it consists of [an] answer to the legal question.

Foster, 698 N.E.2d at 1170 (citation omitted, emphasis in original).

       Our opinion in Taylor v. State, 677 N.E.2d 56 (Ind. Ct. App. 1997), trans. denied,

is instructive. There, after deliberations had begun, the jury informed the trial court that

it had several questions. The court brought the jury back to open court, in the presence of

the parties and their counsel.

       First, the jury asked about the difference between the three different
       charges and whether they must convict on an all or nothing basis. The
       judge replied that he could not discuss the differences between the charges
       and informed them that they could re-read the instructions for guidance.
       The judge then answered the second part of their question by saying that
       the court would sort out any duplicity in verdicts at the time of sentencing,
       and that they should look at each charge individually and determine
       whether the State has met its burden. The jury again asked for clarification,
       and the judge told them that they could enter a guilty or not guilty verdict
       on each of the counts independently. Then the jury asked if any of the
       charges weighed more heavily than the others because of the order of the
       instructions, to which the judge informed them that there was no priority.
       Next the jury asked if “deliver” is “a hard enough fact.” After the judge
       expressed that he was not sure of the question, the prosecutor stated that
       “Deliver is not separately defined.” (R. 852). Finally, the jury asked if the
       instructions were to be considered line by line or item by item. The judge
       stated that they need to be considered as a whole. He then clarified his
       earlier statement about the court sorting out duplicities by affirming that
                                             6
       what the jury does is binding on the court, that the three charges are
       separate, and that they are to infer nothing else from what he said. (R. 850-
       854).

Id. at 62.

       On appeal, the defendant argued that the trial court’s responses had “weakened the

State’s burden of proof and violated his right to consult with counsel and have assistance

of counsel.” Id. Citing the former Indiana Code Section 34-1-21-6 (recodified at Indiana

Code Section 34-36-1-6 (1998)),1 we held that the trial judge correctly followed the

procedure set out in the statute. Specifically, the “jury wanted to be informed about a

point of law. The judge called them into open court where he answered their questions in

the presence of the defendant and both attorneys.” Id. The trial court’s answers “did not

go to the merits of the case but cleared up a potentially dangerous misunderstanding of

the jury that their response must be of an all or nothing nature.” Id. And, even if the

communication were deemed inappropriate, we held that the defendant had not shown

reversible error because the trial judge had cautioned the jury to imply nothing from his

answers other than that the jury was to decide guilty or not guilty on each charge. Id. at

64.

       Here, Fields contends that the trial court’s response to the jury’s mid-deliberation

question constituted a modification of the jury instructions. We cannot agree. As in

Taylor, the trial court merely answered the jury’s question of law arising in the case. In

doing so, the trial court followed the procedure set out in Section 34-36-1-6 by calling the

jury back to open court and answering the question in the presence of counsel. Under


       1
          There is no material difference between the language of former Indiana Code Section 34-1-21-6
and Indiana Code Section 34-36-1-6.
                                                  7
these circumstances, the trial court was not required to reread the final instructions in

their entirety. See Martin, 760 N.E.2d at 601; Jenkins, 424 N.E.2d at 1003.

       Still, Fields cites Crowdus v. State, 431 N.E.2d 796 (Ind. 1982), in support of his

contention that the trial court’s communication to the jury in this case constitutes

reversible error. That case is inapposite. In Crowdus, the jury requested an instruction

on entrapment, which had not previously been included in the final instructions. But in

the present case, the trial court merely answered a question of law arising in the case,

namely, whether paragraphs 1 and 2 of the second part of Jury Instruction 11 required a

jury finding beyond a reasonable doubt on both paragraphs or “just one of them.” The

question presented was a narrow point of law, which the trial court answered succinctly

and without any elaboration. The trial court neither modified the final instructions nor

gave an additional instruction. Fields has not shown that the trial court erred when it

answered the jury’s question. As such, Fields has not shown that the trial court abused its

discretion when it denied his motion for mistrial.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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