MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Jan 28 2020, 8:05 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carlos Enrique Roberson,                                 January 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1691
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1810-F4-35600



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020                 Page 1 of 12
                                          Statement of the Case
[1]   Carlos Enrique Roberson appeals his adjudication as a habitual offender

      following a jury trial. 1 Roberson raises the following two issues for our review:


               1.       Whether the trial court abused its discretion when it
                        declined to instruct the jury on one of Roberson’s proffered
                        jury instructions.


               2.       Whether the trial court abused its discretion when it
                        assessed certain costs and fees against Roberson.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On October 12, 2018, Lawrence Police Department officers initiated a traffic

      stop of a vehicle being driven by Roberson. That traffic stop resulted in a

      search of the vehicle, and in that search officers discovered a firearm within

      reach of the driver’s seat. Officers then determined that Roberson did not have

      a license to carry the firearm and, indeed, he had a prior criminal conviction

      that made his possession of the firearm unlawful.


[4]   The State charged Roberson in relevant part with unlawful possession of a

      firearm, as a Level 4 felony, and for being a habitual offender. The court held a

      bifurcated jury trial at which the parties first argued the Level 4 felony. That




      1
        Roberson does not appeal his conviction for unlawful possession of a firearm by a serious violent felon, as
      a Level 4 felony.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020                  Page 2 of 12
      phase of Roberson’s trial began at 1:35 p.m. on June 13, 2019. At the

      commencement of that phase, the court read and distributed its preliminary

      instructions to the jury. The preliminary instructions included informing the

      jury that it “has the right to determine both the law and the facts. The Court’s

      instructions are your best source of determining the law.” Tr. Vol. 2 at 90, 92.

      Such instructions are referred to as “Section 19” instructions after Article 1,

      Section 19 of the Indiana Constitution, which provides that, “[i]n all criminal

      cases whatever, the jury shall have the right to determine the law and the facts.”


[5]   At the end of the first phase of the trial approximately three and one-half hours

      later, the court read and distributed its final instructions to the jury. Those final

      instructions repeated the earlier Section 19 instruction that “the jury has the

      right to determine both the law and the facts. The Court’s instructions are your

      best source in determining the law.” Id. at 195-96. The final instructions also

      informed the jury to consider the preliminary instructions in arriving at a

      verdict. The court further permitted the jury to take the instructions into the

      jury room during deliberations.


[6]   At 6:55 p.m., the jury returned a guilty verdict against Roberson on the Level 4

      felony charge. The court and the parties then immediately proceeded to the

      second phase of the trial on the habitual offender allegation. That phase began

      with the court reading and distributing to the jury new preliminary instructions.

      Those instructions included the statement that the instructions from the first

      phase of the trial “will not be reread to you” but that the jury “will keep them in

      mind as they are applicable to th[e habitual offender] count also.” Id. at 209.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 3 of 12
      Roberson informed the trial court that he had no objection to that preliminary

      instruction and that he had no additional preliminary instructions at that time.


[7]   Less than one-half hour later, the parties rested on the habitual offender phase

      of the trial. The court then reviewed proposed final instructions for the habitual

      offender phase with the parties after Roberson had waived having that phase’s

      preliminary instructions reread to the jury. The second phase’s final

      instructions included the statement that “the Court has heretofore informed you

      as to your deliberations” and that such “instructions will not be re-read to you

      and you will keep them in mind during your deliberations.” Id. at 225.


[8]   Roberson informed the court that he had no objections to the court’s proposed

      final instructions for the habitual offender phase. However, he proffered the

      following additional instruction: “[B]ecause you are the judges of the law and

      the facts, even though you find that the fact of the prerequisite felony conviction

      is uncontroverted, you have the unquestioned right to find the Defendant is not

      a habitual offender.” Id. at 221.


[9]   The State objected to Roberson’s proffered instruction, which objection the trial

      court sustained. In refusing Roberson’s instruction, the court stated that it “is

      certainly not obliged to issue an invitation to the jury making a habitual

      offender determination [to] disregard prior convictions in addition to informing

      the jury of its ability to determine the law and the facts.” Id. The court further

      stated:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 4 of 12
               In both the preliminary instructions and the final instructions
               [from the initial phase], the Court has stated, under the
               Constitution of Indiana, the jury has the right to determine both
               the law and the facts. The Court’s instructions are your best
               source in determining the law. The Court has also advised the
               jury, in [the] second phase[,] that they are to consider the [initial]
               preliminary and final instructions when considering this phase.


               So the Court denies the Defendant’s request . . . and I think it is
               covered by . . . both preliminary and final [instructions from the
               first phase].


       Id. at 221-22.


[10]   The parties then presented their closing arguments on the habitual offender

       allegation. Roberson’s argument to the jury was that, notwithstanding the

       evidence, the jurors “absolutely have the right today, if you wish to do so, to

       find him not guilty as a habitual offender. That is within your right and in your

       power.” Id. at 224.


[11]   The court then read the final instructions for the habitual offender phase, and

       the jury retired for deliberations. Shortly thereafter, the jury submitted a

       question to the court. That question read: “[I]f we agree that [Roberson] was

       convicted of the first two felonies, do we have the option to determine that he is

       not a habitual offender?” Id. at 227. After discussing the question with the

       parties, the court responded: “[T]he answer is yes. Yes, they can ignore the

       law. So, I’m going to say yes.” Id. at 228. Nonetheless, around 9:15 p.m., the

       jury returned a guilty verdict against Roberson on the habitual offender

       allegation.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 5 of 12
[12]   At Roberson’s ensuing sentencing hearing, the court found that Roberson was

       able to pay court costs of $185, a safe school fee of $200, and a public defender

       supplemental fund fee of $100. The basis for the court’s assessment of those

       costs against Roberson was his “history of employment and [that Roberson is]

       physically and mentally able to work.” Id. at 248. This appeal ensued.


                                      Discussion and Decision
                          Issue One: Roberson’s Proffered Jury Instruction

[13]   On appeal, Roberson first asserts that the trial court abused its discretion when

       it declined to instruct the jury on his proffered jury instruction. “Instructing the

       jury is a matter within the discretion of the trial court, and we’ll reverse only if

       there’s an abuse of that discretion.” Cardosi v. State, 128 N.E.3d 1277, 1284

       (Ind. 2019). “[W]e look to whether evidence presented at trial supports the

       instruction and to whether its substance is covered by other instructions.”

       Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019).


[14]   Roberson’s only argument on appeal is that, as a matter of law, “when a

       defendant requests the trial court to instruct the jury on its role as finders of law

       and fact during the habitual offender phase of a trial, it is reversible error for the

       trial court to refuse the request.” Warren v. State, 725 N.E.2d 828, 837 (Ind.

       2000). Setting aside the fact that Roberson presents no argument at all, let

       alone argument supported by cogent reasoning, that his proffered instruction

       merely sought “to instruct the jury on its role as finders of law and fact,”

       nonetheless we hold that Warren does not apply here. As a subsequent opinion


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 6 of 12
from our Supreme Court—which is disregarded by Roberson in his arguments

on appeal—made clear:


        In Warren we required that the jurors be given the Section 19
        instruction in the habitual offender phase of a trial even though it
        had also been read to them as a [preliminary 2] instruction in the
        guilt phase. . . . The elapsed time between the guilt and habitual
        offender phases of the trial in Warren was two days, and we held
        it to be reversible error for the trial court to refuse the request.


        The present case, however, presents significant differences. On
        the first day of the two-day trial, after lunch break, the court read
        to the jury the preliminary instructions, one of the first of which
        was the defendant’s tendered Section 19 instruction. The
        evidence concluded about noon the following day, and court
        reconvened at 2:30 p.m. for final arguments and instructions.
        The defendant specifically requested that the Section 19
        instruction be included in the final instructions, and the trial
        court ruled that it would re-read the preliminary instructions
        without exception and would also give twenty-one other
        instructions on its own motion. The transcript, however,
        discloses that the Section 19 instruction was not re-read along
        with the remainder of the preliminary instructions. On the other
        hand, the Section 19 instruction was provided in writing to the
        jurors for use during their deliberations. The preliminary
        instructions were included in the notebooks provided to each
        juror by the trial court for use during the trial and deliberations.


        Although the trial court incorrectly failed to read the Section 19
        instruction among the other final instructions, it is very



2
   Our Supreme Court’s opinion quoted here erroneously says that Warren referred to a final instruction. This
is not correct. Warren, 725 N.E.2d at 835. We have accordingly corrected the text to accurately describe
Warren.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020                Page 7 of 12
               significant that this instruction was given to the jurors both orally
               and in writing among the preliminary instructions only a day
               before, and also provided to them in written form for use during
               deliberations. Under these circumstances, we find that the trial
               court’s omission of the Section 19 instruction when it re-read its
               preliminary instructions among the final instructions does not
               warrant reversal.


       Bridges v. State, 835 N.E.2d 482, 483-84 (Ind. 2005) (footnotes and citations

       omitted).


[15]   A 2006 opinion from our Court—also disregarded by Roberson in his

       argument—is on point with this appeal. In Shouse v. State, we declined to

       follow Warren and instead followed Bridges, explaining as follows:


               This case is distinguishable from Warren. Here, the trial court
               gave the Section 19 instruction during final instructions, not
               preliminary instructions, and the habitual offender phase was
               held immediately after the jury announced its verdicts. In
               Warren, the instruction was given during preliminary
               instructions, and two days elapsed between the guilt and habitual
               offender phases of trial. In addition, during closing argument for
               the habitual offender phase of trial in this case, counsel for
               [defendant] reminded the jury:


                        You can consider your final instructions from the trial
                        when you go back to the jury room. One of those
                        instructions is number 21 and I would like you to consider
                        that instruction. Since this is a criminal case the
                        Constitution of the State of Indiana makes you the judges
                        of both the law and the facts. Though this means you are
                        to determine the law for yourself it does not mean you
                        have the right to make, repeal, disregard or ignore the law
                        as it exists.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 8 of 12
                                            *        *       *


                 We agree with the State that Bridges controls the outcome of this
                 case. Although the trial court erred by failing to give the Section
                 19 instruction during the habitual offender phase of trial, the
                 error does not warrant reversal. Similar to Bridges, we find it very
                 significant that the court read the Section 19 instruction during
                 final instructions of the guilt phase of trial. This occurred on the
                 very same day as the habitual offender phase of trial. Also, the
                 jury had a copy of this instruction for use during deliberations,
                 and counsel for [defendant] read this instruction to the jury
                 during closing argument. Under these circumstances, the error is
                 not reversible.


       849 N.E.2d 650, 658-59 (Ind. Ct. App. 2006) (emphasis in original), trans.

       denied.


[16]   Here, the trial court read and distributed the first phase’s preliminary and final

       instructions to the jury, which instructions contained the Section 19

       instructions. The second phase of Roberson’s trial was held immediately after

       the jury returned its verdict on the first phase. The court also read and

       distributed the second phase’s preliminary and final instructions to the jury—

       while those instructions did not in themselves repeat the Section 19 instructions,

       they did explicitly incorporate the instructions from the first phase, which

       instructions the jurors had in their possession.


[17]   This all occurred not just on the “very same day” but in a total timespan of less

       than eight hours. The jurors had copies of all the instructions during their

       deliberations on the habitual offender allegation, and Roberson’s closing


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 9 of 12
       argument on the second phase emphasized the jury’s authority under Article 1,

       Section 19. Moreover, the jury explicitly asked the court during the second

       phase if it could decline to find Roberson guilty of being a habitual offender

       despite the evidence, which the court answered in the affirmative. Accordingly,

       assuming only for the sake of argument that the court erred in not accepting

       Roberson’s proffered instruction, under these circumstances any such error is

       not reversible error. We affirm Roberson’s adjudication as a habitual offender.


                                       Issue Two: Imposition of Fees

[18]   Roberson also asserts on appeal that the trial court abused its discretion when it

       ordered him to pay $485 in costs and fees at the close of the sentencing hearing.

       Sentencing decisions include decisions to impose costs and fees, and a trial

       court’s sentencing decision is reviewed for abuse of discretion. De La Cruz v.

       State, 80 N.E.3d 210, 213 (Ind. Ct. App. 2017) (quotation marks omitted). An

       abuse of discretion has occurred when the sentencing decision is clearly against

       the logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom. Id.

       (quotation marks omitted). The trial court must impose fees within statutory

       parameters. Id.


[19]   According to Roberson, the trial court abused its discretion in ordering him to

       pay the costs and fees because the trial court “did not make a determination

       regarding whether [he] was indigent.” Appellant’s Br. at 9. Indiana Code

       Section 33-37-2-3(a) (2019) requires a trial court to hold an indigency hearing if

       the court imposes costs on a defendant. A trial court has a duty to conduct an
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 10 of 12
       indigency hearing “at some point in time.” Burnett v. State, 74 N.E.3d 1221,

       1227 (Ind. Ct. App. 2017).


[20]   One of the fees the court assessed against Roberson was a public defender

       supplemental fund fee of $100. Although the court stated at sentencing that

       Roberson was to pay that fee, in fact the court had assessed that fee against

       him, pursuant to Indiana Code Section 35-33-7-6, at Roberson’s initial hearing

       in October of 2018. At that hearing, Roberson requested the appointment of a

       public defender on his behalf. In his written request, he informed the court that

       he was employed; that he worked more than forty hours per week; that he made

       $300 per week in take-home pay; and that he had rent and bills to pay.


[21]   According to the court’s order following that hearing, the court found Roberson

       “to be partially indigent with present ability to pay a preliminary fee to the

       Public Defender Supplemental Fund” of $100. Appellant’s App. Vol. II at 37.

       Then, following sentencing about eight months later, the court imposed an

       additional $385 in costs and fees against Roberson along with the earlier $100

       fee. In imposing those costs and fees at sentencing, the court relied on

       Roberson’s “history of employment” that he was “physically and mentally able

       to work.” Tr. Vol. 2 at 248.


[22]   In his challenge to the court’s imposition of the $485 in costs and fees,

       Roberson did not include in the record on appeal a copy of the transcript from

       the initial hearing. It was Roberson’s responsibility to provide that transcript to

       the Court, and we cannot know whether the omission of that transcript was


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 11 of 12
       inadvertent or deliberate. It is apparent, however, that at sentencing the trial

       court relied at least in part on its prior finding that Roberson was “partially

       indigent” with some present ability to pay, as the court reiterated its imposition

       of the $100 fee at that time. Id. Further, the court’s assessment at sentencing of

       Roberson’s history of employment and ability to work is supported by

       Roberson’s own written representations to the court at the initial hearing.

       Accordingly, we conclude that Roberson has not met his burden on appeal to

       demonstrate reversible error on this issue, and we affirm the court’s imposition

       of costs and fees against Roberson.


                                                 Conclusion
[23]   In sum, we affirm Roberson’s adjudication as a habitual offender and the

       court’s imposition of costs and fees against him.


[24]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1691 | January 28, 2020   Page 12 of 12
