MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 29 2015, 8:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Gregory F. Zoeller
Nashville, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James G. Wilson, June 29, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CR-647
v. Appeal from the Marion Superior
Court.
The Honorable Marc Rothenberg,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 49G02-1111-FA-80777
Darden, Senior Judge
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Statement of the Case
[1] James G. Wilson shot his wife, Jaime Wilson, in the stomach with a shotgun.
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He appeals his conviction by jury of attempted murder, a Class A felony. We
affirm.
Issue
[2] James raises one issue, which we restate as: whether the trial court committed
fundamental error in instructing the jury.
Facts and Procedural History
[3] On the night of November 12, 2011, James and Jaime smoked crack cocaine at
an apartment in Indianapolis. They argued, and Jaime left to spend the night at
James’ mother’s home. That same night, Jaime’s brother, James Cart, tried to
call her. James called Cart back, using Jaime’s phone. Cart asked James where
was Jaime, and James replied that she was with Cart. After Cart explained that
Jaime was not with him, James said, “next time I see her I have [a] shotgun and
I’m on [sic] blow her up.” Tr. p. 189.
[4] The next morning, Jaime went looking for James and found him sitting in his
car. James was still angry when Jaime got into the car. As he drove to his
1
Ind. Code §§ 35-41-5-1 (1977), 35-42-1-1 (2007).
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father’s house, James was “driving crazy” and verbally abused Jaime, calling
her “scum, a slut, a crack whore, and everything else.” Id. at 164.
[5] No one was at James’ father’s house when they arrived. Jaime attempted to
leave, but James retrieved a shotgun, pointed it at her head, and threatened to
shoot her in the back of her head if she tried to leave.
[6] Next, James ordered Jaime to go into a bedroom. He ordered her to stand by
the wall furthest from the door and aimed the gun at different parts of her body,
“like he was looking for the best shot.” Id. at 168. In a loud voice, James
continued to insult Jaime and accused her of stealing $2,000 from him and his
father. She begged for her life, pleading with him to put the gun down.
[7] When James stepped into the hallway, Jaime closed the bedroom door on the
gun and tried to take it. After a short struggle, James regained control of the
gun, and Jaime ended up in the bedroom with the door closed. She opened the
door and came out because she “didn’t want the gun—the bullets to come
through the, the door.” Id. at 170.
[8] Jaime went to the kitchen and poured a glass of water. As she was standing by
the refrigerator, James shot her in the stomach at close range, and she fell to the
floor. Jaime told James he had shot her, but he said nothing. She crawled into
the living room, leaving a trail of blood on the floor. James approached Jaime,
grabbed her by the hair, and forced her to look at him. He then said, “I’m
gonna do you and then I’m gonna do me.” Id. at 175. Jaime understood James
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to mean that he intended to kill her and then himself. She begged for her life
again, saying that their three children needed her.
[9] Jaime saw the front door open, and the next thing she remembered, she was
outside, on the grass. James told her he was sorry and not to look at her
wound. Next, he said that she would be alright and that he would go get help.
[10] Meanwhile, a neighbor heard her dogs barking, so she looked outside and saw
James and Jaime. Jaime was lying on the ground screaming, so the neighbor
called 911.
[11] Officer Paul Humphrey was dispatched to the house. Upon arriving, he saw
Jaime lying in the front yard. There was blood on the front of her shirt. She
was “terrified.” Id. at 149. Officer Humphrey asked what happened, and Jaime
pointed at the house as she said, “he shot me.” Id. at 150. She also said his
name was James. Officer Humphrey looked at the house and saw James
walking through the living room toward the front door, holding the shotgun.
Officer Humphrey drew his handgun and told James to drop his weapon.
James did not immediately comply until another officer arrived and, with both
officers’ weapons drawn, they ordered him to put down the gun. The officers
took James into custody.
[12] Jaime was taken to the hospital. She had extensive internal as well as external
bleeding, and her blood pressure was dangerously low. Doctors performed
emergency surgery, opening her abdominal cavity to assess her injuries. The
shotgun blast damaged her colon, small intestine, ureter, and muscles and blood
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vessels adjacent to her spine. Some of the pellets went almost all of the way
through her body, resulting in bruising to the skin on her back. Jaime was in
the hospital for thirty-four days, during which time she was subjected to five
major surgeries to reconstruct her gastrointestinal tract. She was on a ventilator
for twelve days and received artificial nutrition. She would have died if she had
not received medical care immediately.
[13] Police collected a shotgun and a spent shell from the house. Subsequent testing
revealed that the shotgun had fired the shell. In addition, James’ fingerprint
was found on the shotgun.
[14] The State charged James with attempted murder. The case was delayed
because the trial court deemed James incompetent to assist with his defense and
ordered him sent to Logansport State Hospital for treatment. Once James was
deemed to be competent, the case resumed, and James requested leave to
represent himself at trial. The trial court granted James’ request and appointed
standby counsel.
[15] At the beginning of the trial, the court submitted proposed preliminary jury
instructions to the parties. Neither party objected to any of the instructions.
The court read the preliminary instructions to the jury and gave the jurors
notebooks that included copies of those instructions.
[16] Later during the trial, outside the presence of the jury, the court raised a
question about Preliminary Instruction 5a, which set forth the elements of the
offense of attempted murder. The court asked the parties whether they thought
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the instruction was erroneous because it included the word “knowingly.” Id. at
249-50. The court further stated that it would permit a revision to the
instruction, if the parties requested it. After further discussion, the State
requested a revision to the instruction to remove the word “knowingly.” Id. at
257. James objected to the State’s motion. The court decided not to take
further action on the instruction at that time.
[17] After the State rested, the court held a hearing outside of the presence of the
jury. During the hearing, the State again asked that the preliminary instruction
be revised to remove the word “knowingly.” Id. at 320. James objected again.
The court overruled James’ objection.
[18] When the jury returned to the courtroom, the court instructed them to remove
their copies of Preliminary Instruction 5a from their notebooks. The bailiff took
away those copies and distributed to the jurors a revised version of that
instruction that omitted the word “knowingly.” Id. at 327. Next, the court read
the revised instruction to the jury. James testified in his own defense.
[19] The jury determined that James was guilty of attempted murder. The trial court
sentenced him per the jury’s verdict. This appeal followed.
Discussion and Decision
[20] James argues that the trial court committed reversible error in presenting the
original version of Preliminary Instruction 5a to the jury in the first place. He
acknowledges that the court later revised the instruction and gave a corrected,
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revised instruction to the jury, but he maintains the court’s actions were
insufficient to correct the error.
[21] In general, instructing a jury is left to the sound discretion of the trial court, and
we review its decision only for an abuse of discretion. Winkleman v. State, 22
N.E.3d 844, 849 (Ind. Ct. App. 2014), trans. denied. Here, James concedes that
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he did not initially object to Preliminary Instruction 5a. To the contrary, he
objected only when the State moved to revise it.
[22] James now argues that the presentation of the original version of Preliminary
Instruction 5a to the jury amounted to fundamental error. The doctrine of
fundamental error is an extremely narrow exception to the waiver rule. Id.
Under fundamental error review, a defendant must show that an error was so
misleading as to make a fair trial impossible or blatantly violate basic due
process. Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014), cert. denied, 135 S. Ct.
978, 190 L. Ed. 2d 862 (2015). We look at the alleged error in the context of all
that happened and all relevant information given to the jury—including
evidence submitted at trial, closing argument, and jury instructions—to
determine whether the error, if any, had such an undeniable and substantial
2
James states that he has been diagnosed with numerous mental illnesses and claims that he “did not appear
to be capable of raising a correct and coherent objection.” Appellant’s Br. p. 16. He does not claim on
appeal that the trial court erred in determining that he was mentally competent to participate in court
proceedings, nor does James assert that the trial court erred in allowing him to waive his right to counsel and
proceed pro se at trial.
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effect on the jury’s decision that a fair trial was impossible. Winkleman, 22
N.E.3d at 849.
[23] The original version of Preliminary Instruction 5a, as read to the jurors and
presented to them in their notebooks, provided as follows:
The crime of attempted murder is defined as follows:
A person attempts to commit a murder when, acting with the
specific intent to kill another person, he engaged in conduct that
constitutes a substantial step toward killing that person.
Before you may convict the Defendant of Attempted Murder, the
State must have proved each of the following elements beyond a
reasonable doubt:
1. The Defendant, James Wilson
2. Acting with the specific intent to kill Jaime Wilson
3. Did knowingly shoot a deadly weapon, that is: a shotgun,
at and against the person of Jaime Wilson
4. which [sic] was conduct constituting a substantial step
toward the commission of the intended crime of killing
Jamie Wilson
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the defendant not guilty of the
crime of Attempted Murder, a Class A Felony, as charged in
Count I.
Appellant’s App. p. 142.
[24] The revised instruction omitted the word “knowingly.” Tr. p. 327. Wilson
argues that the use of the word “knowingly” initially misinformed the jury of
the elements of the offense that the State had to prove to obtain a conviction.
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[25] However, even if the original instruction misstated the law, we cannot say that
the error was so misleading as to make a fair trial impossible or blatantly violate
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basic due process. The word “knowingly” was used once and was included
only in Preliminary Instruction 5a in reference to the element related to the
shooting of the shotgun. The original version of Preliminary Instruction 5a also
advised the jury twice that the State was required to prove that James had the
“specific intent” to commit murder. Appellant’s App. p. 142. A jury could
have concluded that the original version of Preliminary Instruction 5a favored
James because the instruction could be read as requiring the State to prove two
separate elements of mental states. In addition, Preliminary Instruction 5b
defined “intentionally” for the jury. Id. at 143.
[26] Furthermore, the trial court gave the jury a written revised instruction to correct
any error. An Indiana statute forbids revision of jury instructions during trial,
but only if the trial court issues the revision orally. See Ind. Code § 35-37-2-2
(1985) (“A charge of the court . . . may not be orally qualified, modified, or in
any manner orally explained to the jury by the court.”). The trial court has
inherent authority to correct discretionary rulings, such as jury instruction
matters, as long as a case is pending resolution. See Fiandt v. State, 996 N.E.2d
421, 424 (Ind. Ct. App. 2013) (trial court had discretion to correct erroneous
grant of jury trial request while case was pending).
3
The State argues that the original version of Preliminary Instruction 5a, as given to the jury, was not
erroneous. It is unnecessary for us to address this point.
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[27] Next, we presume that the jury follows the trial court’s instructions. Morgan v.
State, 903 N.E.2d 1010, 1019 (Ind. Ct. App. 2009), trans. denied. The trial court
told the jurors to rip the prior version of Preliminary Instruction 5a out of their
notebooks, give it to the bailiff, and replace it with the revised version to be
distributed to them by the bailiff. After reading the revised instruction to the
jury, the court said, “And again ladies and gentlemen, you should insert that
where the one that was taken out and that will be taken back with you and
considered along with the final instruction once those are given.” Tr. p. 329.
There is no evidence that the jury failed to comply with the court’s directives.
[28] During closing argument, the State informed the jury that it was required to
prove beyond a reasonable doubt that James specifically intended to kill Jaime.
The prosecutor said that when James pointed the shotgun at Jaime, “That’s the
moment of intent. That was when he intended to kill her.” Id. at 361.
[29] Finally, the evidence against James is extensive. The night before the shooting,
James told Cart that he had a shotgun and would “blow her up.” Tr. p. 189.
Jaime testified in detail as to the surrounding facts and circumstances leading
up to James shooting her. Officer Humphrey said that Jaime indicated that
James shot her. The officers saw James wielding the shotgun at the scene of the
shooting. Forensic scientists found James’ fingerprint on the shotgun and
determined that the shotgun had fired the shell that was found inside the house.
[30] Based on these considerations, James has failed to establish fundamental error
in relation to Preliminary Instruction 5a. See Perez v. State, 872 N.E.2d 208, 212
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(Ind. Ct. App. 2007) (any error from a jury instruction that included a reference
to a “knowing” mens rea was not fundamental error in light of the other
instructions), trans. denied.
Conclusion
[31] For the reasons stated above, we affirm the judgement of the trial court.
[32] Affirmed.
Kirsch, J., and Bradford, J., concur.
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