MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                                   FILED
court except for the purpose of establishing
the defense of res judicata, collateral                                      Sep 04 2018, 10:07 am

estoppel, or the law of the case.                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael Roose                                            Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael L. Wilson,                                       September 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-621
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1010-FB-26



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018                      Page 1 of 8
                                          Case Summary
[1]   In January of 2018, a jury found that Michael Wilson was a habitual criminal

      offender. Wilson appeals, arguing that the jury’s finding should be overturned

      because the trial court erroneously instructed the jury. We affirm.



                            Facts and Procedural History
[2]   On October 13, 2010, the State charged Wilson with Class B felony burglary

      and alleged that he was a habitual offender. Following a bifurcated trial, the

      jury found Wilson guilty as charged. We affirmed Wilson’s conviction and the

      habitual offender finding on direct appeal. However, the habitual offender

      finding was overturned during post-conviction proceedings and the matter was

      remanded for a new trial on the habitual offender allegation.


[3]   On January 17, 2018, the trial court conducted a jury trial on the habitual

      offender allegation. In both its preliminary and final instructions, the trial court

      instructed the jury that:


              The State may seek to have a person convicted of a felony
              sentenced as a habitual criminal offender by proving that the
              person has accumulated two (2) prior unrelated felony
              convictions. To be unrelated, a felony must be committed after
              the Defendant has already committed and been sentenced for
              another felony. The Defendant was convicted of Burglary, a
              felony, as charged on page one (1), on August 24, 2011, for a
              burglary committed August 8, 2010, after a jury trial. In this
              phase of the case, you must consider this further charge of
              Habitual Criminal Offender[.]


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018   Page 2 of 8
Appellant’s App. Vol. III, pp. 24, 42 (bold in original). The trial court’s

instructions informed the jury that “the Defendant has entered a plea of not

guilty and … the burden rests upon the State of Indiana to prove to each juror,

beyond a reasonable doubt, every material element of the crime(s) charged in

this information.” Appellant’s App. Vol. III, pp. 25, 43. The trial court further

instructed the jury as follows:


        On August 24, 2011, the Defendant has been convicted of the
        offense of Burglary, a felony, charged in Page I of this
        Information, an offense committed on or about the 8 th day of
        August 2010.

        You may find the Defendant is a habitual criminal offender only
        if the State has proven each of the following facts beyond a
        reasonable doubt:

        The Defendant:

                 1. On the 13th day of January, 2007, committed the
                 offense of Receiving Stolen Property, a class D
                 felony, and was convicted and sentenced for such
                 felony on the 23rd day of May, 2007, under cause
                 number 20D06-0701-FD-21, Elkhart County and;

                 2. Later on the 12th day of December, 2008,
                 committed the offense of Escape, a class D felony,
                 and was convicted and sentenced for such felony on
                 the 8th day of September, 2009, under cause number
                 20D02-0904-FD-22, Elkhart County, and;

                 3. Later committed the offense set out in Count I,
                 Burglary, a felony, on or about the 8th day of August,
                 2010, of which the Defendant was convicted of in
                 Phase I on the 24th day of August, 2011.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018   Page 3 of 8
              If the State failed to prove these elements beyond a reasonable
              doubt, you must find the Defendant is not a Habitual Criminal
              Offender.

              If the State did prove these elements beyond a reasonable doubt
              you should find the Defendant is a Habitual Criminal Offender.


      Appellant’s App. Vol. III, pp. 27, 45 (bold in original).


[4]   The following exchange occurred during the State’s presentation of evidence:


              [THE STATE]: Thank you Your Honor.… At this point the
              State moves to incorporate by reference all evidence, testimony
              and the jury verdict from Phase one –

              MR. WILSON: Objection.

              [THE STATE]: – of the trial into Phase two of this trial.
              Specifically I ask that you instruct to the jury that they can
              consider the information that Mr. Wilson committed the act of
              burglary, a felony, on August 8, 2010 and was convicted by a
              jury on August 24th of 2011.

              THE COURT: Response [Defense Counsel]?

              [DEFENSE COUNSEL]: No objection Your Honor.

              MR. WILSON: Why ain’t you objectin’?

              THE COURT: I will grant that request.

              [THE STATE]: Will you so instruct the jury?

              THE COURT: Ladies and gentlemen, you are specifically
              instructed that the date of commission of the underlying offense
              from page one of the information and the date of conviction are

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018   Page 4 of 8
               as set out in your instructions and that that date is – and that the
               commission of that offense and the date of commission as well as
               the date of conviction are not at issue in this case. Those matters
               have already been established having been proved beyond a
               reasonable doubt to the satisfaction of another jury.


      Tr. Vol. II, pp. 62–63. The jury found that Wilson was a habitual offender.

      The trial court imposed a sentence enhancement of fifteen years, with three of

      those years suspended to probation.



                                 Discussion and Decision
[5]   “To establish that the defendant is a habitual offender, the State must prove

      beyond a reasonable doubt that the defendant has been previously convicted of

      two separate and unrelated felonies.” Flint v. State, 750 N.E.2d 340, 341 (Ind.

      2001).


               To be “unrelated,” the commission of the second felony must be
               subsequent to the sentencing for the first, and the sentencing for
               the second felony must have preceded the commission of the
               current felony for which the enhanced sentence is being sought.
               Failure to prove the proper sequencing requires that the habitual
               offender determination be vacated.


      Id. (internal citations omitted). Therefore, in order to prove that Wilson was a

      habitual offender, the State was required to prove proper sequencing of the

      felonies listed in the habitual offender allegation.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018   Page 5 of 8
[6]   In challenging the habitual offender finding on appeal, Wilson only contends

      that the trial court erred in instructing the jury during the habitual offender

      phase of his trial.


                 Because instructing the jury is a matter within the sound
                 discretion of the trial court, we will reverse a trial court’s decision
                 to tender or reject a jury instruction only if there is an abuse of
                 that discretion. We determine whether the instruction states the
                 law correctly, whether it is supported by record evidence, and
                 whether its substance is covered by other instructions. Jury
                 instructions are to be considered as a whole and in reference to
                 each other; error in a particular instruction will not result in
                 reversal unless the entire jury charge misleads the jury as to the
                 law in the case.


      Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (internal citations and

      quotations omitted). “Where, as here, the defendant failed to preserve an

      alleged instructional defect, the objection is waived, and reversal is warranted

      only in instances of fundamental error.”1 Id.


                 Error is fundamental if it is a substantial blatant violation of basic
                 principles and where, if not corrected, it would deny a defendant
                 fundamental due process. This exception to the general rule
                 requiring a contemporaneous objection is narrow, providing
                 relief only in egregious circumstances that made a fair trial
                 impossible.


      Id. (internal citations and quotations omitted).




      1
          Wilson does not assert that his outbursts during trial were sufficient to preserve the issue for appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018                        Page 6 of 8
[7]   Wilson claims that it was fundamental error to instruct the jury that the dates of

      the commission of, and his conviction for, the underlying burglary were not at

      issue. In making this claim, Wilson argues the challenged instruction violated

      his due process rights “because it created a mandatory, conclusive presumption

      that relieved the State of its burden of proving the timing and sequence of the

      underlying offense, which is necessary to show that the two other alleged

      felonies were ‘unrelated’ to the underlying offense.” Appellant’s Br. p. 8. We

      disagree.


[8]   A close examination of the challenged instruction convinces us that the

      instruction did not relieve the State of any part of its burden of proof. It merely

      informed the jury in the habitual offender phase that a different jury had

      determined in a prior phase of the trial that the State had met its burden of

      proving the facts relating to the underlying burglary conviction. Wilson has

      pointed to no relevant authority suggesting that it was improper for the trial

      court to refer to findings and conclusions made during earlier phases of the trial.

      As such, we conclude that the trial court did not commit error, much less

      fundamental error.2


[9]   The judgment of the trial court is affirmed.




      2
        In reaching this conclusion, we additionally note that Wilson’s defense was not based on any assertion
      relating to his burglary conviction. Instead, it was based on the assertion that the State failed to present
      sufficient evidence to prove that he committed one of the two alleged prior convictions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018                     Page 7 of 8
Bailey, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-621 | September 4, 2018   Page 8 of 8
