MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 23 2020, 9:03 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
Frederick Vaiana F. Aaron Negangard
Indianapolis, Indiana Chief Deputy Attorney General
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Dwayne Jones, July 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2526
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1705-F1-19420
Tavitas, Judge.
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Case Summary
[1] Anthony Jones appeals his convictions for attempted rape, a Level 1 felony;
robbery resulting in serious bodily injury, a Level 2 felony; battery, a Class B
misdemeanor; and criminal confinement, a Level 5 felony. We affirm.
Issue
[2] Jones raises one issue, which we restate as whether the trial court committed
fundamental error in instructing the jury.
Facts
[3] As a result of a series of attacks on women in Indianapolis on May 22, 2017,
and May 26, 2017, the State charged Jones with: (1) rape, a Level 1 felony; (2)
robbery resulting in serious bodily injury, a Level 2 felony; (3) criminal
confinement, a Level 3 felony; (4) kidnapping, a Level 3 felony; (5) sexual
battery, a Level 4 felony; (6) battery resulting in serious bodily injury, a Level 5
felony; (7) intimidation, a Level 6 felony; (8) strangulation, a Level 6 felony; (9)
battery resulting in bodily injury, a Class A misdemeanor; (10) battery, a Class
B misdemeanor; (11) battery, a Class B misdemeanor; (12) battery, a Class B
misdemeanor; (13) confinement, a Level 5 felony; (14) intimidation, a Level 6
felony; (15) strangulation, a level 6 felony; and (16) battery resulting in
moderate bodily injury, a Level 6 felony.
[4] At Jones’s September 2019 jury trial, the trial court gave the jury preliminary
instructions that defined each charge; listed the elements of each charge; and for
each charge, informed the jury that it must find Jones not guilty “if the State
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failed to prove each of these elements beyond a reasonable doubt.” See Tr. Vol.
II pp. 134-143; Appellant’s App. Vol. II pp. 176-191. The trial court also gave
the following preliminary instructions, which were based on the pattern jury
instructions, to the jury:
Instruction Number 15. The burden is upon the State to prove
beyond a reasonable doubt that the Defendant is guilty of the
crimes charged. It is a strict and heavy burden. The evidence
must overcome any reasonable doubt concerning the Defendant’s
guilt, but it does not mean that a Defendant’s guilt must be
proved beyond all possible doubt.
A reasonable doubt is a fair, actual, and logical doubt based upon
reason and common sense. A reasonable doubt may arise either
from the evidence or from the -- a lack of evidence. Reasonable
doubt exists when you are not firmly convinced of the
Defendant’s guilt after you have weighed and considered all the
evidence.
A Defendant must not be convicted on suspicion or speculation.
It is not enough for the State to show that the Defendant is
probably guilty. On the other hand, there are very few things in
the world that we know with absolute certainty. The State does
not have to overcome every possible doubt.
The State must prove each element of the crime by evidence that
firmly convinces each of you and leaves no reasonable doubt.
The proof must be so convincing that you can rely and act upon
it in this matter of the highest importance.
If you find that there is a reasonable doubt that the Defendant is
guilty of the crimes, you must give the Defendant the benefit of
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the doubt and find the Defendant not guilty of the crimes under
consideration.
Instruction Number 16. Under the law of this State, a person
charged with a crime is presumed to be innocent. This
presumption of innocence continues in favor of the Defendant
throughout each stage of the trial and you should fit the evidence
presented to the presumption that the Defendant is innocent, if
you can reasonably do so.
If the evidence lends itself to two reasonable interpretations, you
must choose the interpretation that’s consistent with the
Defendant’s innocence. If there is only one reasonable
interpretation, you must accept that interpretation and consider
the evidence with all the other evidence in the case in making
your decision.
To overcome the presumption of innocence, the State must prove
the Defendant guilty of each element of the crimes charged
beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove
his innocence or to prove or explain anything.
Tr. Vol. II pp. 144-46; Appellant’s App. Vol. II pp. 203-205.
[5] After the close of evidence, the trial court gave the following final instructions:
Instruction 1. . . . The court must point out in the instructions as
heretofore instructed you as to reach these [sic] from trial, the
burden of proof, the credibility of witnesses and the manner of
weighing the evidence received which preliminary instructions
should be considered by you along with the following final instructions
[in] arriving at your verdict in this case. As to these instructions on
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the law read to you by the Court in which you will be allowed to
take to the jury room with you, it is impractical to embody all
applicable law in only one instruction, so in considering one
instruction, you should construe it in connection with and in light of
every other instruction given.
*****
Instruction number [8.] [U]nder the law of this state, a person
charged with a crime is presumed to be innocent. This
presumption of innocence continues in favor of the defendant
throughout each stage of the trial and you should fit the evidence
presented to the presumption that the defendant is innocent if
you can reasonably do so. To overcome the presumption of
innocence, the State must prove the defendant guilty of each
element of the crime charged beyond a reasonable doubt. The
defendant is not required to present any evidence to prove his
innocence or to prove or explain anything.
Tr. Vol. III pp. 206, 208 (emphasis added); Appellant’s App. Vol. II pp. 216-
217, 225.
[6] The trial court also instructed the jury that, if the State failed to prove rape as
charged in Count I, it could consider whether the State proved the lesser-
included offense of attempted rape. The trial court then defined attempted rape
and noted that the State was required to prove the elements “beyond a
reasonable doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20.
[7] The jury found Jones guilty on all counts, except it found Jones not guilty of
kidnapping and it found Jones guilty of attempted rape, a Level 1 felony, rather
than rape. Due to double jeopardy concerns, the trial court entered the
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following convictions: attempted rape, a Level 1 felony; robbery, a Level 5
felony; battery, a Class B misdemeanor; and criminal confinement, a Level 5
felony. The trial court sentenced Jones to an aggregate sentence of thirty-eight
and one-half years in the Department of Correction. Jones now appeals.
Analysis
[8] Jones argues that the trial court committed fundamental error in instructing the
jury. Because instructing the jury is a matter within the sound discretion of the
trial court, we will reverse a trial court’s decision regarding jury instructions
only if there is an abuse of that discretion. Pattison v. State, 54 N.E.3d 361, 365
(Ind. 2016). An abuse of discretion occurs only if the 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. Schuler v.
State, 132 N.E.3d 903, 904 (Ind. 2019).
[9] We determine whether the instruction states the law correctly, whether it is
supported by evidence in the record, and whether its substance is covered by
other instructions. Pattison, 54 N.E.3d at 365. “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.” Id.
[10] Where, as here, the defendant failed to object to the alleged instructional defect,
reversal is warranted only in instances of fundamental error. Id. “Error is
fundamental if it is ‘a substantial blatant violation of basic principles’ and
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where, if not corrected, it would deny a defendant fundamental due process.”
Id. 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.
[11] Jones appears to make two arguments regarding the instructions given by the
trial court: (1) the trial court failed to instruct the jury regarding the meaning of
“beyond a reasonable doubt” in its final instructions; and (2) except for Count I,
the trial court failed to advise the jury of the requisite burden of proof in the
final instructions. Jones acknowledges, however, that he did not object to the
instructions. 1
1
Indiana Trial Rule 51 requires a party to state objections to instructions and provides, in relevant part:
(A) Preliminary Instructions. When the jury has been sworn the court shall instruct the jury in
accordance with Jury Rule 20. Each party shall have reasonable opportunity to examine these
preliminary instructions and state his specific objections thereto out of the presence of the jury
and before any party has stated his case. (The court may of its own motion and, if requested by
either party, shall reread to the jury all or any part of such preliminary instructions along with
the other instructions given to the jury at the close of the case. A request to reread any
preliminary instruction does not count against the ten [10] instructions provided in subsection
(D) below.) The parties shall be given reasonable opportunity to submit requested instructions
prior to the swearing of the jury, and object to instructions requested or proposed to be given.
(B) Final Instructions. The judge shall instruct the jury as to the law upon the issues presented
by the evidence in accordance with Jury Rule 26.
(C) Objections and Requested Instructions Before Submission. At the close of the evidence and
before argument each party may file written requests that the court instruct the jury on the law
as set forth in the requests. The court shall inform counsel of its proposed action upon the
requests prior to their arguments to the jury. No party may claim as error the giving of an
instruction unless he objects thereto before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be
given to make the objection out of the hearing of the jury. The court shall note all instructions
given, refused or tendered, and all written objections submitted thereto, shall be filed in open
court and become a part of the record. Objections made orally shall be taken by the reporter
and thereby shall become a part of the record.
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I. Reasonable Doubt
[12] Jones contends the trial court should have instructed the jury in the final
instructions regarding the definition of “beyond a reasonable doubt.” In
Preliminary Instruction 15 and 16, the trial court specifically defined the burden
of proof. 2 The trial court did not repeat these instructions regarding the burden
of proof in its final instructions; 3 the trial court did, however, inform the jury
that “preliminary instructions should be considered by you along with the
2
Indiana Jury Rule 20 provides the following regarding preliminary instructions:
(a) The court shall instruct the jury before opening statements by reading the appropriate
instructions which shall include at least the following:
(1) the issues for trial;
(2) the applicable burdens of proof;
(3) the credibility of witnesses and the manner of weighing the testimony to be
received;
(4) that each juror may take notes during the trial and paper shall be provided, but
note taking shall not interfere with the attention to the testimony;
(5) the personal knowledge procedure under Rule 24;
(6) the order in which the case will proceed;
(7) that jurors, including alternates, may seek to ask questions of the witnesses by
submission of questions in writing;
(8) that jurors, including alternates, are permitted to discuss the evidence among
themselves in the jury room during recesses from trial when all are present, as long as
they reserve judgment about the outcome of the case until deliberations commence.
The court shall admonish jurors not to discuss the case with anyone other than
fellow jurors during the trial;
*****
(c) It is assumed that the court will cover other matters in the preliminary instructions.
(d) The court shall provide each juror with the written instructions while the court reads them.
3
Indiana Pattern Criminal Jury Instruction No. 13.1000 sets forth a pattern instruction for “Burden of
Proof—Reasonable Doubt—Final Instruction.” The trial court did not read this pattern instruction to the
jury.
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following final instructions [in] arriving at your verdict in this case.” Tr. Vol.
III p. 206; Appellant’s App. Vol. II p. 216.
[13] In support of his arguments, Jones relies on Indiana Jury Rule 26(a), which
provides:
The court shall read appropriate final instructions, which shall
include at least the following:
(1) the applicable burdens of proof;
(2) the credibility of witnesses; and,
(3) the manner of weighing the testimony received.
The court shall provide each juror with written instructions
before the court reads them. Jurors shall retain the written
instructions during deliberations. The court may, in its
discretion, give some or all final instructions before final
arguments, and some or all final instructions after final
arguments.
[14] Although the trial court did not instruct the jury regarding the burden of proof
in the final instructions as required by Jury Rule 26, we cannot conclude that
fundamental error occurred. It is well-settled that instructions must be
considered as a whole and in relation to each other. Pattison, 54 N.E.3d at 365.
The substance of the alleged missing final instruction was adequately covered
by the preliminary instructions read to the jury and incorporated in the final
instructions. Because the jury instructions, considered as a whole, did not make
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a fair trial impossible, the trial court did not fundamentally err when it did not
repeat the burden of proof in the final instructions. See, e.g., G.C.B. v. State, 496
N.E.2d 769, 770 (Ind. 1986) (holding that, because the preliminary instructions
outlined the elements of the offense and the jury was told to consider the
preliminary instructions in deliberations, the defendant’s rights were not
violated by the omission of a final instruction on the elements of robbery); Cruz
Rivera v. State, 127 N.E.3d 1256, 1259 (Ind. Ct. App. 2019) (finding no
fundamental error where, while the trial court instructed the jury on the burden
of proof during final instructions, the trial court did not instruct the jury on the
credibility of witnesses and the manner of weighing testimony), trans. denied.
II. Burden of Proof
[15] Next, Jones argues the trial court failed to instruct the jury regarding the burden
of proof for each count except for Count I. In the preliminary instructions, the
trial court defined each charge; listed the elements of each charge; and for each
charge, informed the jury that it must find Jones not guilty “if the State failed to
prove each of these elements beyond a reasonable doubt.” See Tr. Vol. II pp.
134-143; Appellant’s App. Vol. II pp. 176-191. In the final instructions, the trial
court did not repeat those preliminary instructions. 4 The trial court did,
4
Indiana Pattern Criminal Jury Instruction 13.3900 provides:
[Give standard instruction on charged offense, which should conclude with the following
paragraph:]
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the
Defendant not guilty of ___________, a Level ___________ felony, as charged in Count
___________.
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however, instruct the jury that, if the State failed to prove rape as charged in
Count I, the jury could consider whether the State proved the lesser-included
offense of attempted rape. The trial court then defined attempted rape and
noted that the State was required to prove the elements “beyond a reasonable
doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20. The trial court
also informed the jury that “preliminary instructions should be considered by
you along with the following final instructions [in] arriving at your verdict in
this case.” Tr. Vol. III p. 206; Appellant’s App. Vol. II p. 216.
[16] Although the trial court’s final instructions did not repeat the elements of the
charged offenses and the burden with respect to each charged offense, again, it
is well-settled that instructions must be considered as a whole and in relation to
each other. Pattison, 54 N.E.3d at 365. The preliminary instructions, which
were incorporated by the final instructions, adequately covered the burden of
proof for each charge. The final instructions then also covered the burden of
proof for the lesser-included offense of attempted rape for Count I. Because the
jury instructions, considered as a whole, did not make a fair trial impossible, the
trial court did not fundamentally err when it did not repeat the preliminary
instructions regarding each offense in the final instructions. See, e.g., G.C.B.,
496 N.E.2d at 770 (holding that, because the preliminary instructions outlined
the elements of the offense and the jury was told to consider the preliminary
instructions in deliberations, the defendant’s rights were not violated by the
omission of a final instruction on the elements of robbery).
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Conclusion
[17] Jones has failed to demonstrate fundamental error regarding the jury
instructions. We affirm.
[18] Affirmed.
Riley, J., and Mathais, J., concur.
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