MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 20 2018, 10:44 am
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
David Becsey Curtis T. Hill, Jr.
Zeigler Cohen & Koch Attorney General
Indianapolis, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cody Carpenter, April 20, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1710-CR-2452
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable James K. Snyder,
Appellee-Plaintiff Commissioner
Trial Court Cause No.
49G20-1608-F5-32986
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018 Page 1 of 5
Case Summary
[1] Cody Carpenter appeals his convictions for level 5 felony carrying a handgun
without a license, class A misdemeanor driving while suspended, and class B
misdemeanor possession of marijuana. He asserts that his constitutional and
statutory rights to be present at all stages of his criminal trial were violated by
the trial court’s manner of instructing the jury. Concluding that Carpenter
invited any error, we affirm.
Facts and Procedural History
[2] In August 2016, Carpenter was driving his girlfriend’s vehicle. A police officer
observed that one of the vehicle’s headlights was out and initiated a traffic stop.
As the officer approached the driver’s side of the vehicle, he smelled marijuana
emanating from the open window. The officer asked Carpenter for his license
and vehicle registration, and Carpenter gave him a credit card and the title to
the vehicle. The officer determined that Carpenter’s license had been
suspended and arrested him. While conducting a search incident to arrest, the
officer discovered a baggie containing marijuana in Carpenter’s pocket.
[3] Because the vehicle was stopped on a road with no shoulder and no other driver
was available to remove the vehicle, the police concluded that it needed to be
towed and conducted an inventory search prior to towing. In the front center
console, the police discovered a black box containing fourteen hydromorphone
pills, a schedule II substance, and 0.13 grams of marijuana. On the floor
Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2452 | April 20, 2018 Page 2 of 5
behind the passenger seat, the police found a case that contained a handgun and
two magazines.
[4] The State charged Carpenter with Count 1, class A misdemeanor carrying a
handgun without a license; Count 2, level 5 felony possession of a narcotic
drug; Count 3, class A misdemeanor driving while suspended; and Count 4,
class B misdemeanor possession of marijuana. In addition, the State charged
Carpenter in part 2 of Count 1 with level 5 felony carrying a handgun without a
license with a previous conviction.
[5] In August 2017, a jury trial was held. Phase 1 of the trial excluded the charge
in part 2 of Count 1. After the jury reached a verdict in phase 1, but before the
verdict was announced, the trial court made the following statement for the
record:
[D]uring the time they were deliberating the jurors had a
question specifically towards whether or not they were required
to find a guilty verdict as to one charge if they found the [sic]
guilty on the other. So, the court did a little bit of research on its
own and found a pattern instruction exactly on point. And that
instruction read, in this case the defendant is charged with four
(4) counts of criminal offenses although[] all of the counts are
contained within one charging document. You are to consider
the law and the evidence as it may apply to each count
individually and separately from the other counts. Upon
contacting counsel from both sides, the parties agreed that that instruction
should be given to the jury so, I added that as Final Instruction #25 and
specifically that is Indiana Pattern Criminal Instruction
#13.4300.
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Tr. Vol. 2 at 124-25 (emphasis added). Defense counsel did not disagree with
or object to the trial court’s statement.
[6] The jury found Carpenter not guilty on Count 2 and guilty on Counts 1, 3, and
4. Carpenter waived his right to a jury trial for part 2 of Count 1 and stipulated
to the underlying basis for that charge. The trial court found Carpenter guilty of
level 5 felony carrying a handgun without a license. The trial court sentenced
Carpenter to an aggregate term of three years, with one year executed in
community corrections and two years suspended to probation. This appeal
ensued.
Discussion and Decision
[7] Carpenter argues that his constitutional and statutory rights to be present at all
stages of his criminal trial were violated by the trial court’s manner of
communicating Final Instruction #25 with the jury during its deliberations.
The trial court’s statement indicates that before it gave Final Instruction #25 to
the jury, it consulted with Carpenter’s counsel regarding the instruction and his
counsel agreed that the trial court should give the instruction to the jury.1
Therefore to the extent any error occurred, the error was invited. “Under the
doctrine of invited error, a party may not take advantage of an error that she
1
We disagree with Carpenter’s argument that the “transcript does not clearly establish that the trial court did
indeed contact the attorneys before responding to the jury request.” Appellant’s Br. at 8. Although the trial
court made clear that it consulted with the attorneys for both parties before it gave Final Instruction #25, the
record does not reveal the nature and manner of the jury’s communication to the trial court or whether the
trial court reread the entire jury instructions to the jury. The appropriate procedure for the trial court would
have been to make a record as to these matters as well.
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commits, invites, or which is the natural consequence of her own neglect or
misconduct.” Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App. 2016) (citing
Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)); see also Kemp v. State, 647
N.E.2d 1143, 1145-46 (concluding that Kemp invited instructional error by
expressly agreeing to instruction and was precluded from seeking reversal based
on a procedure that he agreed to), trans. denied. Accordingly, we affirm
Carpenter’s convictions.
[8] Affirmed.
Bailey, J., and Brown, J., concur.
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