The opinion
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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