Marquell M. Jackson v. State of Indiana

FILED
Oct 05 2017, 8:44 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana

Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Marquell M. Jackson, October 5, 2017
Appellant-Defendant, Court of Appeals Case No.
82A04-1609-CR-2074
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1510-F1-6686

Najam, Judge.

Statement of the Case
[1] Marquell M. Jackson appeals his convictions and sentence, following a jury

trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony;

four counts of attempted robbery, as Level 3 felonies; two counts of aggravated
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 battery, as Level 3 felonies; and for being found to have been a member of a

criminal gang, a sentencing enhancement. Jackson raises seven issues for our

review, but we address only the following five issues:

1. Whether the trial court committed fundamental error
when it permitted the State to amend the charge for the
criminal gang enhancement such that the charge no longer
stated a cognizable offense.

2. Whether two of Jackson’s convictions violated
Indiana’s prohibitions against double jeopardy.

3. Whether the trial court abused its discretion when it
admitted into evidence phone calls Jackson had made
from jail.

4. Whether the trial court committed fundamental error
when it instructed the jury on accomplice liability.

5. Whether the State presented sufficient evidence to support
Jackson’s conviction for burglary, as a Level 1 felony.

[2] We hold that the trial court committed fundamental error when it permitted the

State to amend the charge on the criminal gang enhancement such that the

charge no longer stated an offense under Indiana law. We also hold that two of

Jackson’s convictions violate Indiana’s prohibitions against double jeopardy

because they were enhanced by the same bodily injury as Jackson’s conviction

for burglary, as a Level 1 felony. In light of those holdings, we reverse

Jackson’s criminal gang enhancement and remand with instructions for the trial

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 court to vacate that enhancement. We also reverse the two of Jackson’s

convictions that are based on the same bodily injury as his conviction for

burglary, as a Level 1 felony, and we remand with instructions for the court to

enter judgment of conviction on lesser-included offenses on those counts. And

we instruct the court to resentence Jackson in accordance with this opinion.1

On the remaining issues, we affirm.

Facts and Procedural History
[3] In October of 2015, Jeremy Herbert lived in a second-floor apartment above the

711 Tavern in Evansville. Herbert’s apartment was one of two second-floor

apartments above the 711 Tavern; one could access those two apartments from

the street by gaining entry through an exterior door that Herbert could remotely

open. Herbert also had video surveillance on that door. Once through that

door, visitors would go upstairs to a hallway common to both apartments. One

apartment had a door off the hallway; Herbert’s apartment had a doorframe in

which he had hung a sheet to “act as the doorway.” Tr. Vol. IV at 153. Logan

Orth stayed intermittently at Herbert’s apartment and sold marijuana out of the

apartment.

[4] On October 25, Jackson and his friend, Diego Thomas, learned that Orth had

one-half pound of marijuana in Herbert’s apartment. Jackson and Thomas

decided that they would go to Herbert’s apartment “[t]o rob them” of that

1
In light of our holdings, we do not address Jackson’s argument under Indiana Appellate Rule 7(B) or his
other arguments under the criminal gang enhancement.

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 marijuana. Id. at 9. However, upon approaching the exterior door, they “saw

[the] camera above the door” and abandoned their plan. Id.

[5] The next day, Jackson and Thomas again decided to rob Orth at Herbert’s

apartment. This time, Jackson and Thomas obtained the assistance of Jarvice

Sears, Corey Cain, and O’Neill Bruin to help them carry out their plan. The

five confederates acquired two firearms and some face masks to use in the

commission of the invasion. They agreed to equally split any marijuana and

money they seized from Orth.

[6] Shortly before 9:00 p.m., the group approached the exterior door to Herbert’s

apartment and observed the surveillance camera. They then “debate[d]”

among themselves “whether . . . [to] keep on going . . . or just leave.” Id. at 17.

Jackson advocated for continuing forward, and, after about five minutes of

discussion, the cohort agreed. Thomas then “pulled the camera out [of] the

wall,” the five men went through the exterior door,2 they “pulled back” the

sheet to Herbert’s apartment, and they entered the apartment. Id. at 18-19.

[7] At that time, about ten people, including Orth and Herbert, were inside the

apartment “smoking blunts.” Id. at 156. The five intruders demanded the

occupants’ marijuana and money. Sears pulled out a firearm. Jackson told the

occupants that Sears “ain’t playing with you all.” Id. at 25. Nonetheless, Orth

also pulled out a firearm, and a gunfight ensued. Sears shot Orth twice and

2
The exterior door was unlocked at the time.

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 Orth shot Sears once. The confederates then fled the apartment. On the way

out, Cameron Kendall, a resident in the other upstairs apartment, came into the

hallway. Sears shot Kendall in the stomach. Kendall, a former sniper for the

United States Army, returned fire at the confederates, striking Sears once,

Thomas once, and Bruin twice.

[8] Jackson and his cohort made their way outside, but Sears collapsed shortly after

and Thomas remained with him until police arrived. The other three eventually

drove to a hospital and were arrested thereafter. No one died from the

gunfight.

[9] While in prison, Jackson made several phone calls that the State recorded. The

State advised Jackson prior to the phone calls that it would record them and

that they could be used against him at trial. Undeterred, in one call Jackson

stated that “[t]he only thing they could stick on me is that burglary. Now, I can

get that dropped down to where I can go to the Safe House and get House

Arrest, so I’ll plead out to that . . . .” Tr. Vol. III at 108. In another call,

Jackson again commented that he could be convicted of burglary. Following

several inaudible comments relating to his alleged participation in the events at

the apartment, Jackson then stated that “[w]hen everything started happening I

ran because I didn’t know, I knew but I didn’t know, so when I seen what I

didn’t know, then I ran.” Id. at 111.

[10] The State charged Jackson with sixteen offenses and a criminal gang

enhancement. The State’s original charge of the criminal gang enhancement

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 tracked the language of Indiana Code Section 35-50-2-15(b) (2015) and stated,

in relevant part, that, “on October 26, 2015, [Jackson] knowingly or

intentionally was a member of a criminal gang while committing the underlying

offense.” Appellant’s App. Vol. II at 56. However, three days before Jackson’s

trial, the State amended that language to instead allege that Jackson “was a

known member of a criminal gang[] while committing the underlying felony

offense.” Id. at 97. Jackson did not object to the State’s amendment of the

charging information on the criminal gang enhancement.

[11] The trial court ordered Jackson’s ensuing jury trial to be bifurcated between the

substantive offenses and the criminal gang enhancement. During the first

phase, numerous witnesses, including some of his confederates, testified and

described the events of October 26, 2015. The State also introduced, over his

objections, Jackson’s jailhouse phone calls as described above. The jury found

Jackson guilty as charged.

[12] Jackson’s jury trial then proceeded to the second phase on the criminal gang

enhancement allegation. In his introductory remarks to the jury at the start of

that proceeding, Jackson’s attorney stated:

I’ll keep it straight to the point on this one. The Court’s
instruction number 2 says that the State has alleged that Mr.
Jackson was a known member of a gang while committing the
underlying felony offenses and, not or, and Mr. Jackson
committed the felony offenses at the direction of or in affiliation
with a criminal gang. Number 1 was a known member. Number 2,
at the direction or an affiliation. Keep those two factors in mind

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 when you listen to the evidence. I don’t think it will be sufficient to
convince you beyond a reasonable doubt . . . .

Tr. Vol. V at 164-65 (emphases added). The State then called Thomas as a

witness, and he redescribed the events of October 26, 2015. In a short cross-

examination, Jackson’s attorney questioned Thomas as follows:

Q . . . you[’d] consider yourself a friend of [Jackson’s]
wouldn’t you?

A Yes.

Q How long have you all been friends?

A Five or six years.

Q Mr. Jackson, he’s not a known member of a gang is he?

A No, he is not.

Id. at 178. The State then called Evansville Police Department Detective Keith

Whitler, who investigated the October 26, 2015, incident. He stated that

Jackson and his cohort acted together in the commission of those offenses, but

he did not testify to any prior known gang involvement by Jackson. Finally,

the State called Bruin. Bruin, like Thomas, described the events of October 26,

2015. The totality of Bruin’s cross-examination is as follows:

Q Mr. Bruin, how long have you been, well are you friends
with Marquell Jackson?

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 A Yes.

Q How long have you been friends with him?

A Going on like 7 years.

Q Do you know Mr. Jackson to be a member of a gang?

A No.

Q . . . did he act at your direction?

A What do you mean by act?

Q Did you make him do anything?

A No.

Id. at 189.

[13] The court gave the jury four instructions on the criminal gang enhancement.

The court’s instruction number two recited the State’s charging information,

namely, that Jackson “was a known member of a gang while committing the

underlying felony offenses . . . .” Appellant’s App. Vol. III at 57. However, the

court’s instruction number three informed the jury that, to find Jackson guilty

under the enhancement, the jury had to find that he “knowingly or intentionally

was a member of a criminal gang while committing the offense . . . .” Id. The

jury found Jackson guilty on the enhancement.

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[14] Thereafter, the trial court entered its judgment of conviction against Jackson for

burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four

counts of attempted robbery, as Level 3 felonies; two counts of aggravated

battery, as Level 3 felonies; and for being a member of a criminal gang. The

court ordered Jackson to serve thirty years for burglary, as a Level 1 felony,

enhanced by an additional thirty years for being a member of a criminal gang.

The court ordered Jackson’s other sentences to run concurrent with those sixty

years. This appeal ensued.

Discussion and Decision
Issue One: The Amended Criminal Gang Enhancement Charge

[15] We first address Jackson’s argument on appeal that the trial court committed

fundamental error when it permitted the State to amend the criminal gang

enhancement allegation. Fundamental error “is a substantial, blatant violation

of due process” that “must be so prejudicial to the rights of a defendant as to

make a fair trial impossible.” Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015)

(citations omitted).

[16] The State’s original charge of the criminal gang enhancement tracked the

statutory language and stated in relevant part that, “on October 26, 2015,

[Jackson] knowingly or intentionally was a member of a criminal gang while

committing the underlying offense.” Appellant’s App. Vol. II at 56; see I.C. §

35-50-2-15(b)(1). However, nearly seven months later and three days before

Jackson’s trial, the State amended that language to instead allege that Jackson

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 “was a known member of a criminal gang[] while committing the underlying

felony offense.” Id. at 97.

[17] The language of the amended charge does not track and is not consistent with

the language of the statute. See I.C. § 35-50-2-15(b)(1). In particular, the

amended charge omits a material element from the statute, namely, the mens

rea. And the amended charge adds an element that is not within the statute,

namely, that Jackson was “a known member” of a criminal gang. Appellant’s

App. Vol. II at 97.

[18] As a result of those changes, the amended charge is substantially different from

the statutory language and carries a wholly different meaning. For example,

under the language of the State’s amended charge, the State needed only to

show that someone3 believed Jackson to be a member of a criminal gang. But

the Indiana Code demands that Jackson knowingly or intentionally was a member

of a gang. I.C. § 35-50-2-15(b)(1).4 Thus, it is not enough under the statute that

some third parties might have believed Jackson to be a member of a gang;

Jackson’s membership must have been real and the result of his knowing or

intentional conduct. In other words, being a known member of a gang is not

equivalent to knowingly or intentionally being a member of a gang. The

3
While Indiana Code Section 35-50-2-15(g) provides a limited description of some evidence the State may
use to demonstrate membership in a criminal gang, that statute is not exhaustive.
4
A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious
objective to do so. I.C. § 35-41-2-2(a). And a person engages in conduct “knowingly” if, when he engages in
the conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b).

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 amended charge did not state an allegation under the criminal gang

enhancement statute.

[19] The Indiana Supreme Court has long recognized that a “[c]onviction [for] a

non-existent crime is fundamental error” and “a nullity.” Moon v. State, 267

Ind. 27, 366 N.E.2d 1168, 1168-69 (1977). Indeed, as our Supreme Court has

made clear, a conviction where “[t]here is no such offense” in the Indiana Code

“does not follow any legal authority” and “offends our concepts of criminal

justice.” Young v. State, 249 Ind. 286, 231 N.E.2d 797, 799 (1967). It is the

province of our legislature to define crimes and penalties. Ind. Const. art. 4 §§

22-23. It is not too much to ask the State not to improvise but to charge

defendants only with crimes as defined by our legislature.

[20] Further, “it is well-established that due process requires that a defendant be

given notice of the crime or crimes with which he is charged so that he can

prepare his defense. Absent sufficient notice that a particular offense is

charged, a defendant cannot be convicted of that crime.” Thompson v. State, 761

N.E.2d 467, 470 (Ind. Ct. App. 2002) (quotation marks omitted). Likewise, as

Justice Massa wrote for our Supreme Court, it is a fundamental principle that

“people have a right to fair warning of the criminal penalties that may result

from their conduct.” Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016). And the

charging information must be sufficiently specific to ensure that the defendant

will not twice be put in jeopardy for the same act. Blackburn v. State, 260 Ind. 5,

291 N.E.2d 686, 690 (1973).

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[21] The State asserts that Jackson’s challenge is merely to the sufficiency of the

charging information. The Indiana Supreme Court has held that no

fundamental error exists when a charge erroneously states the mens rea as

“knowingly” rather than “intentionally” when specific intent is required.

Burgess v. State, 461 N.E.2d 1094, 1097-98 (Ind. 1984). Our Supreme Court has

also held that, when a charging information erroneously titles the alleged

offense using a label for an offense that does not exist, the charging information

by itself does not demonstrate reversible error if the substantive allegation in the

charge puts the defendant on notice that the State is actually charging an

existing offense. Head v. State, 443 N.E.2d 44, 51 (Ind. 1982). But the State’s

amended charge here does not merely misstate the mens rea or mistitle the

offense.

[22] Rather, while the amended charge here states the correct name for the charge

and provides the correct legal citation, as explained above in substance the

charge alleges an act that does not constitute a criminal gang enhancement as

defined in the Indiana Code. And we have long held that it is typically “the

text of the charging information,” as opposed to its title, “[t]hat constitutes the

offenses with which [a defendant] was charged and convicted.” Funk v. State,

714 N.E.2d 746, 750 (Ind. Ct. App. 1999), trans. denied; see also Head, 443

N.E.2d at 51. We have also repeatedly concluded that the complete omission

of a material element of an offense, such as the mens rea, is fundamental error

when that omission fails to give the defendant notice of the elements of the

offense and makes him unable to adequately prepare his defense. E.g.,

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 Thompson, 761 N.E.2d at 470; Downey v. State, 726 N.E.2d 794, 799 (Ind. Ct.

App. 2000), trans. denied; Phillips v. State, 518 N.E.2d 1129, 1131-32 (Ind. Ct.

App. 1988); see also Blackburn, 291 N.E.2d at 690 (stating that “certain details

may be omitted” from the charging information so long as there is “sufficient

information to enable [the defendant] to prepare his defense and to assure that

he will not twice be put in jeopardy for the same crime”). Here, the substance

of the charging information failed to state an offense and completely omitted

the mens rea. Thus, with its amended charge, the State put Jackson on notice

that he was being charged with a nonexistent offense.

[23] Further, the fundamental nature of the erroneously amended charge had a

direct impact throughout the trial proceedings that followed. During the second

phase of his jury trial, Jackson’s counsel repeatedly emphasized in his

arguments to the jury and in his cross-examination of the witnesses the part of

the amended charge that was added by the State in error—namely, whether

Jackson was “a known member” of a gang. Tr. Vol. V at 164-65, 178, 189.5 In

other words, the State’s error required Jackson to prepare his defense to attack

irrelevant facts rather than relevant facts. Also, two of the trial court’s four

instructions to the jury at the conclusion of the second phase were

incompatible: in instruction two, the court informed the jury of the language of

5
The parties dispute on appeal whether the timing of the amendment enabled Jackson to adequately prepare
his defense. But, while the record is clear that Jackson’s counsel had a defense to the amended charge
prepared, the record is equally clear that that defense was focused almost exclusively on the erroneous
language of the amended charge. Insofar as the State suggests on appeal that the original charge properly
followed the statutory language and therefore precludes a finding of fundamental error, we reject the State’s
argument in light of the record on appeal.

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 the State’s erroneously amended charge; in instruction three, the court informed

the jury of the proper statutory language, which included the mens rea omitted

by the State from its amended charge.

[24] Again, “[t]he purpose of an information is to advise the defendant of the

particular crime charged so that he can prepare a defense.” McGee v. State, 495

N.E.2d 537, 538 (Ind. 1986). That purpose cannot be fulfilled where, as our

Supreme Court said in Tyson, there is no “fair warning” that the conduct

complained of by the State in its information is an offense. 51 N.E.3d at 92.

That purpose also cannot be fulfilled where, as here, the State at trial presents

evidence of an act other than that charged. E.g., Young v. State, 30 N.E.3d 719,

726-28 (Ind. 2015).

[25] In addition, the amended charge does not adequately protect Jackson from

double jeopardy. It is not clear from the record whether the State punished

Jackson for having merely been “a known member” of a gang (as alleged in the

amended charge and actually defended against) or for “knowingly or

intentionally” being a gang member during the instant offenses (as originally

charged and actually tried by the State). Accordingly, the amended charge “did

not adequately describe the charge so that [Jackson] could plead this present

conviction should he subsequently be charged with” the same act. Griffin v.

State, 439 N.E.2d 160, 161-62 (Ind. 1982). Thus, the amended charge is

inadequate to protect Jackson from double jeopardy.

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[26] The amended charge for the criminal gang enhancement is fundamentally

erroneous on this record for another reason. Even if it were acceptable for the

State to hold someone to trial for a nonexistent offense, Chief Justice Rush has

explained for our Supreme Court that it violates a defendant’s fundamental

right to due process to allow the State to charge an offense on a specified set of

facts, have the defendant rely on the language of that charge to prepare his

defense, and then allow the State to present evidence of a different offense—

including an otherwise inherently included lesser offense—to support the

charge. Young, 30 N.E.3d at 726-28.

[27] Here, there is no question that the State expressly based its charge on Jackson

being “a known member” of a criminal gang. Like the defendant in Young,

Jackson “frame[d his] defense” solely in terms of that language “to the

exclusion of any other” defense. Id. Yet, during trial, the State wholly failed to

produce any evidence that Jackson was “a known member” of a criminal gang,

as Jackson emphasized in his arguments to the jury and in his cross-

examination of the witnesses. As our Supreme Court made clear in Young, the

State cannot engage in such an evidentiary bait-and-switch. Id. Thus, even if

the State were permitted to charge the criminal gang enhancement as amended,

the State did not present evidence to support the allegation that Jackson was “a

known member” of a criminal gang, and reversal is required. Id.

[28] In sum, the amended charge was a misdirection. The trial court committed

fundamental error when it permitted the State to amend the criminal gang

enhancement allegation to charge the defendant with being “a known member”

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 of a criminal gang. In its operation and effect, the amended charge poisoned

the well as it skewed the evidence and argument and caused the defendant to be

tried for and defend against an offense that does not exist under the statute. We

reverse Jackson’s enhancement and remand with instructions that the court

vacate the enhancement and the sentence imposed on it.

Issue Two: Double Jeopardy

[29] Jackson also asserts that the trial court violated his right to be free from double

jeopardy when it entered its judgment of conviction on burglary, as a Level 1

felony; robbery, as a Level 2 felony (as alleged in Count 3); and aggravated

battery, as a Level 3 felony (as alleged in Count 8), because each of those three

offenses was enhanced based on the same serious bodily injury to Orth. The

State acknowledges that the enhanced robbery and aggravated battery offenses

“may violate principles of double jeopardy.” Appellee’s Br. at 27.

[30] We agree. The Indiana Supreme Court has long recognized that multiple

offenses may not be enhanced based on the same bodily injury. Pierce v. State,

761 N.E.2d 826, 830 (Ind. 2002). In such circumstances, entry of judgment on

the base-level offense for those offenses with the less severe penal consequences

is the appropriate remedy. See Street v. State, 30 N.E.3d 41, 48-49 (Ind. Ct. App.

2015), trans. denied. Accordingly, we reverse Jackson’s convictions under Count

3 for robbery, as a Level 2 felony, and under Count 8 for aggravated battery, as

a Level 3 felony. We remand to the trial court with instructions that it instead

enter judgment of conviction for the lesser-included offenses of, respectively,

robbery, as a Level 5 felony, and battery, as a Class B misdemeanor. See I.C. §§
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 35-42-5-1(a) (base-level offense of robbery); 35-42-2-1(c) (base-level offense of

battery).

Issue Three: Admission of Phone Calls

[31] We next consider Jackson’s argument that the trial court abused its discretion

when it admitted excerpts from the two phone calls he had made from prison

into evidence. The trial court has “inherent discretionary power on the

admission of evidence, and its decisions are reviewed only for an abuse of that

discretion.” McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004) (internal

quotation marks omitted). An abuse of discretion occurs when the trial court’s

judgment “is clearly against the logic and effect of the facts and circumstances

and the error affects a party’s substantial rights.” Guilmette v. State, 14 N.E.3d

38, 40 (Ind. 2014).

[32] According to Jackson, the trial court abused its discretion when it admitted

those excerpts because they “concerned inadmissible plea negotiations and

w[ere] highly misleading and prejudicial.” Appellant’s Br. at 20. But we agree

with the State that, his bald assertions aside, Jackson has made no showing that

his statements had any relationship to any plea negotiations. Moreover,

Jackson was advised prior to his phone calls that they could be recorded and

used against him at trial, and he does not suggest on appeal that his admissions

following that advisement were not made voluntarily, knowingly, or

intelligently. See Baer v. State, 866 N.E.2d 752, 762 (Ind. 2007).

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[33] We also reject Jackson’s assertions that the excerpts were irrelevant,

misleading, and highly prejudicial. First, Jackson did not preserve for appellate

review his argument that the excerpts were irrelevant, see Tr. Vol. III at 73, and,

as such, we do not consider that argument. Second, the trial court has broad

discretion to determine whether the probative value of relevant evidence is

substantially outweighed by the danger of unfair prejudice. Snow v. State, 77

N.E.3d 173, 177, 179 (Ind. 2017). The unfair prejudice, if any, from Jackson’s

own admissions “was not so high that it overrode the trial court’s wide

discretion.” Id. at 179. Accordingly, the trial court did not abuse its discretion

in the admission of the excerpts from the jailhouse phone calls.

Issue Four: Jury Instruction on Accomplice Liability

[34] Jackson asserts that the trial court committed fundamental error when it

instructed the jury on accomplice liability. As the Indiana Supreme Court has

explained:

As “[t]he manner of instructing a jury lies largely within the
discretion of the trial court,” this Court reverses a trial court’s
jury instruction “only for an abuse of discretion.” But because
[the appellant] did not object to the accomplice liability
instruction given by the trial court or tender his own accomplice
liability instruction, he waived his right to appeal the instruction
provided to the jury. Consequently, we “will only reverse the
trial court if the trial court committed error that was
fundamental,” in instructing the jury on the elements of
accomplice liability when attempted murder is charged.
Fundamental error “is a substantial, blatant violation of due
process” that “must be so prejudicial to the rights of a defendant
as to make a fair trial impossible.”

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 Rosales, 23 N.E.3d at 11 (citations omitted; first brackets original to Rosales).

[35] The trial court instructed the jury on accomplice liability as follows:

A person who knowingly or intentionally aids another in
committing a crime is guilty of that crime. In order to commit a
crime of aiding, a person must have knowledge that he is aiding
the commission of the crime. To be guilty, he does not have to
personally participate in the crime nor does he have to be present
when the crime is committed. Mere presence alone is not
sufficient to prove the Defendant aided the crime. Failure to
oppose the commission of the crime alone is also insufficient to
prove that the Defendant aided the crime. However, presence at
the scene of the crime and failure to oppose the crime’s
commission are factors which may be considered in determining
whether there was aiding another to commit the crime. Before
you can convict the Defendant as an accessory the State must
prove the elements of the crime and that the Defendant
knowingly or intentionally aided another to commit the crime
beyond a reasonable doubt.

Appellant’s App. Vol. III at 31.

[36] On appeal, Jackson asserts that that instruction was erroneous because it

“relieved the State of its burden of proving that Marquell participated in the

underlying offenses . . . .” Appellant’s Br. at 27. In support of that assertion,

Jackson contends that we have previously held a substantially similar

instruction “to be erroneous.” Id. (citing Hawn v. State, 565 N.E.2d 362, 366

(Ind. Ct. App. 1991)). But Hawn has no such holding. Rather, after quoting the

instruction in that case, we stated:

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 appellant argues that the following sentence was erroneous: “He
does not have to personally participate in the crime nor does he
have to be present when the crime is committed.” Our courts
have repeatedly held that an accessory’s presence at the scene of
the crime is not necessary and that the evidence need not show
that the accessory personally participated in the commission of
each element of the crime. Johnson v. State (1981), Ind. App., 423
N.E.2d 623, 627. Although the State’s instruction does not
qualify the participation language, any error was harmless due to
the strong evidence of appellant’s guilt. Hurt v. State (1990), Ind.
App., 553 N.E.2d 1243, 1249.

Hawn, 565 N.E.2d at 366. At best, that language says that the instruction could

have been more clear. But it does not say that the instruction was erroneous,

and it certainly does not suggest that any such error necessarily rises to the level

of fundamental error. Indeed, our case law is clear that instructions

substantially similar to Jackson’s are adequate instructions. E.g., Boney v. State,

880 N.E.2d 279, 293-94 (Ind. Ct. App. 2008), trans. denied. We reject Jackson’s

challenge to the accomplice liability instruction.6

Issue Five: Sufficient Evidence of Burglary

[37] Last, Jackson asserts that the State failed to present sufficient evidence to

support his conviction for burglary, as a Level 1 felony. Our standard of review

is clear: in reviewing such claims, we will consider only the evidence most

favorable to the verdict and the reasonable inferences to be drawn therefrom.

6
Jackson’s citations to Fowler v. State, 900 N.E.2d 770, 774 (Ind. Ct. App. 2009), and Peterson v. State, 699
N.E.2d 701, 706 (Ind. Ct. App. 1998), are not supported by cogent argument, and we do not consider them.
See Ind. Appellate Rule 46(A)(8)(a).

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 Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm the conviction

if there is probative evidence from which a reasonable jury could have found

the defendant guilty beyond a reasonable doubt. Id. We will neither reweigh

the evidence nor reassess the credibility of witnesses. Id.

[38] To show that Jackson committed burglary, as a Level 1 felony, the State was

required to prove beyond a reasonable doubt that Jackson broke and entered the

building or structure of another person with the intent to commit a felony

therein, and that Jackson’s act resulted in serious bodily injury to another. I.C.

§ 35-43-2-1. On appeal, Jackson asserts only that the State failed to present

sufficient evidence that he broke into Herbert’s apartment.

[39] “[I]n Indiana, a ‘breaking’ is proved by showing that even the slightest force

was used to gain unauthorized entry.” State v. Hancock, 65 N.E.3d 585, 591

(Ind. 2016) (quotation marks omitted). Here, a member of Jackson’s cohort

moved the sheet that Herbert had hung in his doorway, and which acted as a

door to his apartment, in order to gain unauthorized entry into Herbert’s

apartment. That, as a matter of law, is sufficient to show a “breaking” for

purposes of the burglary statute. See id.; see also Meehan v. State, 7 N.E.3d 255,

258-59 (Ind. 2014).

[40] Still, Jackson contends that moving a sheet hung in a doorway is not sufficient

because a sheet is not a “structural impediment.” Appellant’s Br. at 33 (citing

Creasy v. State, 518 N.E.2d 785, 786 (Ind. 1988)). But we do not read Creasy to

demand something more substantial than Herbert’s sheet. Indeed, in Hancock,

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 the Indiana Supreme Court cited with approval an opinion of this court in

which we had held that “rush[ing] past a victim to gain entry” sufficed to show

a breaking. 65 N.E.3d at 591 (citing Anderson v. State, 37 N.E.3d 972, 974-75

(Ind. Ct. App. 2015)). Our Supreme Court also stated that “it is not necessary

to show forcible entry, only that some physical act was used to gain entry.” Id.

(quoting McCormick v. State, 178 Ind. App. 206, 382 N.E.3d 172, 174 (1978)).

Moving the sheet was a physical act used to gain entry. Accordingly, the State

presented sufficient evidence to show that Jackson broke into Herbert’s

apartment when a member of Jackson’s cohort physically moved the sheet in

Herbert’s doorway to gain entry.

Conclusion

[41] In sum, we reverse Jackson’s criminal gang enhancement and his convictions

under Count 3 and Count 8. We remand with instructions that the trial court

vacate the criminal gang enhancement and enter judgment of conviction under

Count 3 for robbery, as a Level 5 felony, and under Count 8 for battery, as a

Class B misdemeanor. We also instruct the trial court to resentence Jackson in

accordance with this opinion. On all other issues, we affirm.

[42] Affirmed in part, reversed in part, and remanded with instructions.

Kirsch, J., and Brown, J., concur.

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