ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Lorraine L. Rodts Christopher C.T. Stephen
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 35S04-0406-CR-00275
JASON E. BRIDGES, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Appeal from the Huntington Circuit Court, No. 35C01-0210-FB-55
The Honorable Mark A. McIntosh, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 35A04-0308-CR-400
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October 12, 2005
Dickson, Justice.
The defendant, Jason E. Bridges, seeks reversal of his conviction for aiding in armed
robbery. The Court of Appeals affirmed in part and remanded in part, rejecting the defendant's
claims challenging the trial court's application of the corpus delicti rule and the trial court's in-
structions regarding (a) the jury's right to decide both the law and the facts and (b) accomplice
liability. While affirming the defendant's conviction, the Court of Appeals, in a memorandum
decision, found the sentencing statement to be inadequate and remanded to the trial court with
instructions. We granted the defendant's petition for transfer, 812 N.E.2d 807 (Ind. 2004), to ad-
dress the jury instruction issues. But as to all other issues, we now summarily affirm. Indiana
Appellate Rule 58(A)(2).
The defendant contends that the trial court erred by failing to include among the final in-
structions his tendered instruction, drawing upon Article I, Section 19, of the Indiana Constitu-
tion, informing the jury that they have the right to decide both the law and the facts. Citing War-
ren v. State, 725 N.E.2d 828 (Ind. 2000), and other cases, he argues that the value in instructing
the jury of its role as finder of fact and law is not limited to preliminary instructions.
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 final instruction in the
guilt phase. Id. at 837. We emphasized that Section 19 is "firmly engrained as a fundamental
principle in Indiana's constitutional law." Id. (quoting Parker v. State, 698 N.E.2d 737, 743 (Ind.
1991)). There is no sound basis for distinguishing between the right to seek a Section 19 instruc-
tion during a habitual offender phase and the right to seek it during final instructions of a guilt
phase. A defendant is entitled to have a proper Section 19 instruction presented to the jury in
both preliminary and final instructions. 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. Warren, 725 N.E.2d at 837.
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. 1 Trans. at 121-22. 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. Appel-
lant's App'x. at 182. The transcript, however, discloses that the Section 19 instruction was not
1
During the preliminary jury instructions, the Section 19 instruction was read immediately after
the general instruction informing the jurors of the probable length of trial, their duties during lunch and
other periods of separation, their obligation to avoid reading or listening to any reports of the court pro-
ceedings, and their need to keep an open mind until they heard all the evidence. Immediately following
the Section 19 instruction, the next instruction read to the jury advised them, "You are to consider all of
the instructions as a whole . . . ." Trans. at 120-122.
2
re-read along with the remainder of the preliminary instructions. Compare Trans. 121-121 (pre-
liminary instructions) with Trans. 509-10 (final instructions). 2 On the other hand, the Section 19
instruction was provided in writing to the jurors for use during their deliberations. The prelimi-
nary instructions were included in the notebooks provided to each juror by the trial court for use
during the trial and deliberations. Trans. at 95, 120. 3
Although the trial court incorrectly failed to read the Section 19 instruction among the
other final instructions, it is very 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.
The defendant also contends that the trial court gave an erroneous instruction regarding
accomplice liability. On appeal, he argues that the instruction "singled out [his] failure to oppose
the crime, his companionship with the actual perpetrators, and his conduct before and after as
circumstances warranting" jury consideration. Br. of Appellant at 29. He also urges that such
circumstances "may never suffice to establish accomplice liability in the absence of proof of af-
firmative conduct to assist in the crime's commission." Id. The Court of Appeals rejected this
2
In reading its final instructions, the trial court began with "You are to consider all of the instruc-
tions as a whole . . .," apparently skipping over the Section 19 instruction along with the preliminary in-
struction that generally described the jurors duties during the trial. Trans. at 509.
3
We reach this conclusion from the following comments by the trial judge to the jurors at the
commencement of the trial:
[At commencement of trial] I’m going to read quite detailed instructions to you, covering those
points that you’re talking about, and you will have a copy for yourself. Each juror will receive a
copy, a notebook full of instructions that I will read to you, in addition to you having the instruc-
tions, and you will have them throughout the trial. You will have them in the jury room when
you deliberate . . . .
Transcript at 95.
Ladies and gentlemen, you have received your notebooks. Inside you’ll notice what are called
preliminary instructions. You’re going to receive final instructions, and you’ll each have a copy
of those, too. You may read along with me as I read the Court’s preliminary instructions.
Id. at 120.
[At conclusion of final arguments] You're given the instructions . . . Mine are numbered; yours
are not . . . . Read along with me and then you'll take these instructions into the jury room with
you when you deliberate.
Id. at 509.
3
claim on the grounds that it had previously affirmed the giving of an identical instruction in
Hopkins v. State, 747 N.E.2d 598, 608 (Ind. Ct. App. 2001).
On transfer, the defendant asserts that this Court "ultimately" granted transfer in Hopkins
and "found the accomplice liability instructions to be erroneous on other grounds as Hopkins had
claimed." Appellant's Petition to Transfer at 3. This assertion is incorrect. As to the Hopkins
opinion cited by the Court of Appeals in the present case, transfer was denied and the cause re-
manded for resentencing as mandated by the Court of Appeals. After resentencing by the trial
court, Hopkins appealed again, attempting to reassert his previous claim that the trial court's in-
struction on accomplice liability and attempted murder constituted fundamental error. The Court
of Appeals applied the "law of the case" doctrine and affirmed his conviction. Hopkins v. State,
769 N.E.2d 702 (Ind. Ct. App. 2002). As to that second appeal, we did grant transfer. Our deci-
sion, however, was not for the reason that the accomplice liability instruction was incorrect.
Rather, it focused on whether the jury was adequately instructed regarding the specific intent to
kill element required for attempted murder, and whether the omission of this element was fun-
damental error under the facts of that case. Hopkins v. State, 782 N.E.2d 988, 991-92 (Ind.
2003). The present case does not involve a charge of attempted murder and the omission of the
intent to kill element in Hopkins is not relevant here.
Regardless, however, at trial the defendant's only objection to the accomplice liability in-
struction was that it "is not an accurate statement of law." Trans. at 457. This objection was in-
sufficient. By failing to specifically identify his claimed objection or to tender a correct instruc-
tion remedying the alleged defect, the defendant failed to preserve any question for appeal. Indi-
ana Trial Rule 51(C) ("No party may claim as error the giving of an instruction unless he objects
thereto . . . stating distinctly the matter to which he objects and the grounds of his objection.").
Transfer having previously been granted, we find that the challenged instructions do not
require reversal and we summarily affirm the Court of Appeals as to all other issues. The defen-
dant's conviction is affirmed and this cause is remanded to the trial court pursuant to the mandate
of the Court of Appeals regarding sentencing.
4
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
5