# Christopher Jerome Harris v. State of Indiana

> Indiana Supreme Court · June 29, 2023

URL: https://www.frixlaw.com/law-library/cases/9897213

## Case

- **Court:** Indiana Supreme Court
- **Decided:** June 29, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9897213

## How later opinions describe it (automated extraction)

- recognizing that evidence is relevant if it “provides background information that would be helpful to a jury”

## Opinion text

FILED
Jun 29 2023, 1:10 pm

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

IN THE

Indiana Supreme Court
Supreme Court Case No. 23S-CR-165

Christopher Jerome Harris,
Appellant (Defendant below)

–v–

State of Indiana,
Appellee (Plaintiff below).

Argued: October 26, 2022 | Decided: June 29, 2023

Appeal from the Marion Superior Court
No. 49D27-1908-F3-32941
The Honorable Angela Dow Davis, Judge
The Honorable Barbara Crawford, Senior Judge

On Petition to Transfer from the Indiana Court of Appeals
No. 21A-CR-1315

Opinion by Justice Goff
Justice Molter concurs in part and in the judgment with separate opinion in
which Justice Massa joins.
Chief Justice Rush concurs in part and dissents in part with separate opinion
in which Justice Slaughter joins in part.
Justice Slaughter dissents with separate opinion.
Goff, Justice.

In this case, we grant transfer to review a trial court’s exclusion of
testimony from the jury trial of Christopher Harris’s habitual offender
status. Harris wished to testify to the circumstances of his most serious
crime of conviction, his intent to rehabilitate himself, and his purported
innocence of one of his prior, unrelated felonies. The trial court excluded
all this as irrelevant to the issue of whether Harris had accumulated the
requisite convictions. Harris claims his testimony was relevant because
Article 1, Section 19 of the Indiana Constitution gave the jury the right to
determine, not only whether he had the convictions, but whether he was
ultimately a habitual offender. A jury must indeed be allowed to decide
whether a defendant is a habitual offender, irrespective of proof of the
necessary convictions. Nevertheless, Harris’s testimony was irrelevant
because it did not tend to prove or disprove his convictions. He had no
constitutional right to present irrelevant evidence. Hence, the trial court
did not err by excluding the testimony.

Facts and Procedural History
In the summer of 2019, Christopher Harris began “hanging out” with a
woman who lived at an Indianapolis apartment complex. Tr. Vol. II, p.
224. He became suspicious that she was seeing another man. Harris
approached the man as he sat in his car. Harris pointed a handgun at him,
accused him of “messing with” the woman, fired two shots, swung the
gun at the man’s head, took money and a gold chain from him, and finally
ordered the man out of the car before firing several more shots into it. Id.
at 107‒14. The man was left bleeding.

The State charged Harris with Level 3 felony robbery while armed with
a deadly weapon, Level 4 felony unlawful possession of a firearm by a
serious violent felon (“unlawful possession”), Level 5 felony battery with
a deadly weapon, and Level 6 felony criminal recklessness while armed

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 2 of 21
with a deadly weapon. 1 A month later, the State filed a separate
information seeking a sentence enhancement by alleging Harris to be a
habitual offender on account of two prior, unrelated felony convictions. 2

Before trial, Harris waived trial by jury and the State in turn dismissed
the unlawful possession charge. After a bench trial, Harris was found
guilty of robbery and battery as charged, but not guilty of criminal
recklessness. Before going on to the habitual offender phase, the trial court
noted that Harris had never had an initial hearing on the habitual offender
charge. The trial court promptly held such a hearing, explaining to Harris
that he was charged with accumulating two unrelated convictions, namely
a 2002 Class B felony robbery conviction and a 2013 Class B felony
unlawful possession conviction. The trial court advised Harris of his
rights but pointed out that he had already waived trial by jury. The State
then raised a concern that Harris might not have made an effective waiver
of his right to a jury trial of the habitual offender enhancement. The trial
court allowed Harris a choice and he elected a jury trial.

Nine days later, a jury was empaneled to determine whether Harris
was a habitual offender. The parties stipulated to the existence of Harris’s
two convictions and that they constituted prior, unrelated convictions. 3
The trial court instructed the jury to accept these admissions. The State
presented no further evidence.

The defense called Harris as a witness. He testified as to his age when
his present and prior convictions had occurred. Counsel then asked
whether there was “anything going on” in Harris’s life at the time of the
2019 robbery. Tr. Vol. III, p. 106. The State objected that this was
irrelevant. The trial court agreed, ruling that the only issue was “whether
these two prior felony convictions make him a habitual offender.” Id. at

1Ind. Code § 35-42-5-1(a) (2018); I.C. § 35-47-4-5(c); I.C. §§ 35-42-2-1(c)(1), (g)(2); I.C. §§ 35-42-
2-2(a), (b)(1)(A).
2 I.C. § 35-50-2-8(a) (2017).
3The written stipulation labelled the 2013 unlawful possession conviction a “Level 4” felony.
Ex. 87.

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107. Outside the jury’s presence, Harris then proffered his testimony that,
at the time of the robbery, he had recently been diagnosed with PTSD and
was taking “some unfamiliar medication” that made him “like a zombie.”
Id. at 110. Counsel argued that this bore on Harris’s “efforts at
rehabilitation” and, thus, the jury’s “determination as to his status of a
habitual offender.” Id. at 112. Harris also wished to testify to his “plans to
further rehabilitate himself.” Id. Finally, Harris wanted to explain the
circumstances of his 2002 robbery conviction. Harris said he had been
nineteen years old and in serious legal trouble for the first time. He “took
a plea instead of knowing [he] could have went to trial” and “really
wasn’t guilty of the situation.” Id. at 114. The trial court excluded this
testimony as a collateral attack on a prior conviction.

The jury returned to the courtroom, the defense rested, and the trial
court instructed the jury that it had the right to judge the facts and the
law. Going further, the instructions told the jury that “even where you
find that the fact of the prerequisite prior felony convictions is
uncontroverted, you have the unquestioned right to find that the
defendant is not a habitual offender.” App. Vol. II, p. 197. 4 The jury found
Harris to be a habitual offender. The trial court sentenced him to an
aggregate term of twenty-seven years: twelve years for robbery, three
years concurrently for battery, and a habitual offender enhancement of
fifteen years to be served consecutively.

On appeal, Harris argued that the trial court’s exclusion of his
testimony violated Article 1, Sections 19 and 13 of the Indiana
Constitution, 5 as well as federal guarantees of the right to testify in his
own defense. A unanimous Court of Appeals panel deemed these claims
waived for failure to raise them in the trial court. Harris v. State, 187

4We note that a trial court is “not obligated to issue an invitation to the jury to disregard prior
convictions in addition to informing the jury of its ability to determine the law and the facts.”
Walden v. State, 895 N.E.2d 1182, 1186 (Ind. 2008).
5“In all criminal cases whatever, the jury shall have the right to determine the law and the
facts.” Ind. Const. art. 1, § 19. “In all criminal prosecutions, the accused shall have the right …
to be heard by himself and counsel … .” Ind. Const. art. 1, § 13.

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N.E.3d 287, 291, 294 n.5 (Ind. Ct. App. 2022). Waiver notwithstanding, the
panel denied Harris’s Article 1, Section 19 claim on the merits. Id. at 291‒
94. The panel noted that this Court’s decision in Seay v. State recognized
the jury’s “discretion to refuse to find the defendant to be a habitual
offender even if the defendant had the requisite prior felony convictions.”
Id. at 292 (citing 698 N.E.2d 732, 734 (Ind. 1998)). The panel further
acknowledged this Court’s later statement that “‘the facts regarding the
predicate convictions are relevant to the jury’s decision whether or not to
find a defendant to be a habitual offender.’” Id. at 293 (quoting Hollowell v.
State, 753 N.E.2d 612, 617 (Ind. 2001)). The panel held, however, that a
2014 amendment to the habitual offender statute superseded this Court’s
precedent. Id. at 293 & n.4 (citing I.C. § 35-50-2-8(h)). 6 Under the amended
statute, in the panel’s opinion, the jury “only decides whether the
defendant has the requisite prior felonies” and, if so, “then habitual-
offender status is automatic.” Id. at 293. Hence, “evidence about a
defendant’s convictions beyond the fact of conviction is no longer
relevant.” Id. at 294. 7

We now grant transfer, thus vacating the Court of Appeals opinion. See
Ind. Appellate Rule 58(A).

Standards of Review
We assess a trial court’s exclusion of evidence for abuse of discretion.
Ramirez v. State, 174 N.E.3d 181, 189 (Ind. 2021). However, to the extent
that constitutional claims or statutory interpretation are implicated, we
review these issues de novo. Id.; Church v. State, 189 N.E.3d 580, 585 (Ind.
2022).

6 See Pub. L. No. 158-2013, § 661, 2013 Ind. Acts 1155.
7 The Court of Appeals also rejected Harris’s sufficiency of the evidence claim and ordered the
trial court to attach the habitual offender enhancement to the sentence for robbery. 187 N.E.3d
at 291, 295. We summarily affirm the opinion below on these issues. See Ind. Appellate Rule
58(A)(2).

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Discussion and Decision
Harris argues that Article 1, Section 19 of the Indiana Constitution gives
a jury “‘discretion to determine whether a defendant is a habitual
offender’” even when the requisite unrelated convictions have been
proven. Appellant’s Br. at 15 (quoting Hollowell, 753 N.E.2d at 617). From
this, he infers that the relevant evidence encompassed not merely the
“barebones” fact of his convictions, but, also, the circumstances of his
crimes. Id. As the jury heard nothing about these circumstances, Harris
contends, it had no basis to “‘consider mercy.’” Id. (quoting Hollowell, 753
N.E.2d at 618 (Rucker, J., concurring in part)). Harris also claims that
Article 1, Section 13, and various federal constitutional protections entitled
him to testify in his own defense.

The State urges us to find Harris’s claims waived. If not, then the State
asks us to hold that the 2014 amendment to the habitual offender statute
limited the jury’s role to determining the existence of the unrelated
convictions. According to the State, Article 1, Section 19 was implicated
only so long as the statute gave the jury the right to determine habitual
offender status. Thus, the State infers that only evidence regarding the
unrelated convictions was relevant. The State also argues that the
relevance issue was previously decided in its favor in Taylor v. State, 511
N.E.2d 1036 (Ind. 1987). Finally, the State insists that Harris’s right to be
heard is subject to the requirement that his testimony be relevant under
the controlling substantive law.

Harris sufficiently preserved his relevance argument for appeal. He
made offers to prove the testimony he wished to present. See Ind.
Evidence Rule 103(a)(2). And he argued a basis for its relevance, namely
the jury’s need to determine whether he had the status of habitual
offender. See Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998) (stating that
“the offer to prove should identify the grounds for admission of the
testimony”). Counsel also stated in opening argument that the jury would
“get to judge the law and the facts.” Tr. Vol. III, p. 99. Of course, it is
preferable to cite specifically to a source of law or an element of the
pleadings when arguing for relevance at the trial level. But, in the context
of this case, Harris did enough to apprise the trial court of the legal issue

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 6 of 21
involved. By contrast, we deem Harris’s Article 1, Section 13 and federal
constitutional arguments waived because they were raised for the first
time on appeal. See Winn v. State, 748 N.E.2d 352, 359 (Ind. 2001).
Nevertheless, because these claims are related to the Article 1, Section 19
issue, we choose to address them in the interest of providing a complete
review of the matter. See Sharp v. State, 42 N.E.3d 512, 515 (Ind. 2015)
(recognizing the “common practice” of exercising discretion to address
claims notwithstanding waiver).

I. The jury in a habitual offender proceeding has the
constitutional right to determine habitual offender
status.
The State argues that the amended habitual offender statute tasks the
jury with determining only the existence of the unrelated convictions. As a
first step, this opinion reviews our precedents on the role of the jury and
concludes that Article 1, Section 19 applies to the habitual offender status
determination. The jury must therefore be allowed to determine habitual
offender status. Turning to the statute, it appears ambiguous whether the
legislature intended the jury to determine status as well as prior
convictions. Given this ambiguity, the interpretation that complies with
constitutional requirements is preferable. The opinion therefore concludes
that the jury retains its statutory role of determining a defendant’s
ultimate habitual offender status.

A. Article 1, Section 19 of the Indiana Constitution applies
to a jury trial of habitual offender status.
“Habitual offender is a status that results in an enhanced sentence.” I.C.
§ 35-50-2-8(j). The State may seek to have a felony defendant sentenced as
a habitual offender by alleging that he has accumulated the “prior
unrelated felony convictions” required by statute. I.C. § 35-50-2-8(a). If the
defendant was convicted of his present felony after a jury trial, there is
then a “sentencing hearing” on the habitual offender charge before the
same jury. I.C. § 35-50-2-8(h). Otherwise, the habitual offender charge is

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adjudicated by the trial court. Id. It must be proven beyond a reasonable
doubt that the defendant has the alleged convictions. I.C. §§ 35-50-2-8(b)‒
(d). If a defendant is “found to be a habitual offender,” the sentencing
court must enhance the felony sentence and may do so by up to twenty
years in some cases. I.C. § 35-50-2-8(i).

This Court has considered many times whether the habitual offender
jury must be allowed to determine a defendant’s ultimate habitual
offender status or only whether the unrelated convictions exist. The
answer depends in part on the applicability of Article 1, Section 19 of the
Indiana Constitution. This provision requires that a jury in any criminal
case be allowed to decide not only what the facts are but also what the law
is and, consequently, how the law applies to the facts. Holden v. State, 788
N.E.2d 1253, 1254‒55 (Ind. 2003); Holmes v. State, 671 N.E.2d 841, 857 (Ind.
1996), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675 (Ind.
2009).

The seminal decision on how Article 1, Section 19 affects habitual
offender status proceedings is Seay. In that case, the trial court had
instructed the jury that it was judge only of the facts; that is, whether the
defendant had accumulated the requisite convictions. 698 N.E.2d at 733.
This Court unanimously ruled this to be error. Id. at 737. The opinion
deemed it significant that the statute provided for a jury trial: “If the
legislature had intended an automatic determination of habitual offender
status upon the finding of two unrelated felonies, there would be no need
for a jury trial on the status determination.” Id. at 736 (citation omitted). In
other words, the Court explained, “adjudication of habitual offender
status required more than simply a finding that the prerequisite prior
felonies were properly proven.” Id. at 735. The jury also had discretion to
decide “whether a defendant should be given habitual offender status.” Id.
And, because the legislature had provided for a trial by jury, complete
with the “beyond a reasonable doubt” standard of proof, to decide on a
status carrying a potentially “severe” sentence enhancement, Article 1,
Section 19 guaranteed the jury’s right to determine the facts and the law.
Id. at 736 & n.8. The jury had to have the “ability to find Seay to be a
habitual offender (or not to be a habitual offender) irrespective of the
uncontroverted proof of prior felonies.” Id. at 737.

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This Court stated that Seay “definitively established” that Section 19 “is
applicable during habitual offender proceedings, and thus the jury has the
power in such circumstances to determine both the law and the facts.”
Parker v. State, 698 N.E.2d 737, 742 (Ind. 1998). Just ten years later,
however, the Court took a different approach.

In Walden v. State, this Court reiterated that “the jury is entitled to make
a status determination over and above its determination of whether the
predicate offenses have been established.” 895 N.E.2d 1182, 1185 (Ind.
2008). However, the majority opinion set Seay’s holding on a different
foundation: the “interplay” between the habitual offender statute and the
“umbrella ‘law and the facts’ statute.” Id. (citing I.C. § 35-50-2-8; I.C. § 35-
37-2-2(5) (1985)). The latter statute provides that “[t]he judge shall inform
the jury that they are the exclusive judges of all questions of fact, and that
they have a right, also, to determine the law.” I.C. § 35-37-2-2(5). This new
rationale was an exercise of constitutional avoidance. It was unnecessary
to constitutionalize the jury’s right to determine the law in a habitual
offender hearing, the Court reasoned, given that the “law and facts”
statute also guaranteed it. 895 N.E.2d at 1185. 8

Seay was correct in its holding and its original constitutional basis. 9
The legislature has provided for a jury trial in habitual offender status

8 The revised, non-constitutional basis for the jury’s role went unrecognized in Sample v. State,
which reverted to reliance on “the jury’s Article I, Section 19 authority.” 932 N.E.2d 1230, 1233
(Ind. 2010).
9This determination that Article 1, Section 19 of the Indiana Constitution applies to the
habitual offender jury trial is not strictly necessary to the outcome of this case. This Court will
“generally avoid addressing constitutional questions if a case can be resolved on other
grounds.” Girl Scouts of S. Illinois v. Vincennes Indiana Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013)
(citations omitted). However, an exception makes sense in this case. See, e.g., Camreta v. Greene,
563 U.S. 692, 705‒07 (2011) (noting that it may be beneficial to clarify constitutional standards,
instead of resolving cases on qualified immunity grounds). The issue was fully and ably
briefed and argued by appropriate parties. It concerns judicial procedure, rather than primary
conduct in the world outside. And it is necessary to provide trial courts with clarity on the
role of the jury, an issue that is bound to recur.

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proceedings. I.C. § 35-50-2-8(h). 10 The State must prove the requisite
convictions to the jury. I.C. §§ 35-50-2-8(b)‒(d). But the ultimate issue is
whether the defendant is “found to be a habitual offender.” I.C. § 35-50-2-
8(i). This scheme implicates Article 1, Section 19, which declares the jury’s
right to judge both the facts and the law, emphatically, in “all criminal
cases whatever.” This provision does not require the legislature to entrust
sentence enhancement status decisions to juries. See, e.g., Smith v. State, 825
N.E.2d 783, 786 (Ind. 2005) (repeat sexual offender status determinations
need not be made by a jury). But, when a jury trial is held, the jury must
be allowed to perform its constitutionally mandated functions. Thus, in
the habitual offender phase, the jury may determine both whether the
defendant has the convictions alleged and whether those convictions
make the defendant a habitual offender as a matter of law.

B. The amended habitual offender statute does not strip
the jury of its law-determining role.
The Court of Appeals panel below held that a 2014 amendment to the
habitual offender statute stripped the jury of its right to determine
habitual offender status, leaving it to decide only whether the unrelated
convictions exist. The statute reads more ambiguously, however, than the
panel allowed.

When we interpret a statute, our first task is to “give its words their
plain meaning and consider the structure of the statute as a whole.” ESPN,
Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)
(citation omitted). We take account of what the statute does not say, as
well as what it does. Id. If ambiguity remains, we seek the legislature’s
intent in enacting the statute. Id. at 1196. In discerning this intent, “we
consider the objects and purposes of the statute as well as the effects and

10A jury trial is to be held in the habitual offender phase when the guilt phase was tried to a
jury. I.C. § 35-50-2-8(h). This prompts the question whether Harris was statutorily entitled to a
habitual offender jury trial, since he had a bench trial for the guilt phase. See id. However, any
error in holding a jury trial was invited by the State.

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repercussions of our interpretation.” State v. Int’l Bus. Machines Corp., 964
N.E.2d 206, 209 (Ind. 2012) (internal quotation marks and citation
omitted). We also consider how other statutes bear upon the subject. Id.

The provision at issue is Indiana Code subsection 35-50-2-8(h), which
now provides:

If the person was convicted of the felony in a
jury trial, the jury shall reconvene for the
sentencing hearing. If the trial was to the court
or the judgment was entered on a guilty plea,
the court alone shall conduct the sentencing
hearing under IC 35-38-1-3. The role of the jury
is to determine whether the defendant has
been convicted of the unrelated felonies. The
state or defendant may not conduct any
additional interrogation or questioning of the
jury during the habitual offender part of the
trial.

Pub. L. No. 158-2013, § 661, 2013 Ind. Acts 1155, 1604–05 (bold-type
language in original).

Beginning with the language and structure of the statute, it is
ambiguous whether “[t]he role of the jury” is intended to be exclusively
the determination of the unrelated convictions. Standing alone, the
provision could be read that way because the definite article is used in
specifying “[t]he role.” See Bivins v. State, 642 N.E.2d 928, 956 (Ind. 1994)
(use of “the,” by contrast with “any,” implies an intent to limit what is to
be considered). And “[w]hen certain items or words are specified or
enumerated in a statute then, by implication, other items or words not so
specified or enumerated are excluded.” State v. Willits, 773 N.E.2d 808, 813
(Ind. 2002) (internal citation and quotation marks omitted). At the same
time, the provision contains no express words of exclusivity, such as
“only.” The sentence following, concerning the parties’ “interrogation or
questioning of the jury,” throws no light on the matter.

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Aside from its textual implications, the statute’s structure counsels
against reading “[t]he role of the jury” as exclusive. First, this Court has
stated that there would be no need for a jury trial to determine habitual
offender status if it followed automatically on a finding of the requisite
convictions. Seay, 698 N.E.2d at 736. Second, a separate section of the
statute provides expressly for the application of “[t]he procedural
safeguards that apply to other criminal charges.” I.C. § 35-50-2-8(l). In
Indiana, the jury’s right to determine the law is one of these safeguards.
Indeed, it is expressly provided for by the “law and facts” statute. I.C. §
35-37-2-2(5). The habitual offender statute therefore arguably
contemplates the jury performing its law-determining role.

The meaning of the statute is ambiguous and the legislature’s intent
uncertain. However, when one reasonable reading of an ambiguous
statute would render it unconstitutional, we will prefer another
reasonable reading that preserves its constitutionality. Sims v. United States
Fidelity & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003). We thus strike statutes
down only when to do so is unavoidable. Id. Applying this rule, Indiana
Code subsection 35-50-2-8(h) requires the jury, in reaching its verdict, to
determine the existence of the requisite convictions. But this does not
preclude what Article 1, Section 19 demands, namely that the jury be
allowed to determine the ultimate issue of habitual offender status. 11

11While Article 1, Section 19 is phrased in terms of the rights of the jury, it is designed to
protect the liberty of defendants. See Daily v. State, 10 Ind. 536, 537‒38 (1858); Hon. Robert D.
Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33
Val. U. L. Rev. 449, 449‒54 (1999). Defendants therefore have standing to rely on it. See Solarize
Indiana, Inc. v. S. Indiana Gas and Elec. Co., 182 N.E.3d 212, 217 (Ind. 2022) (a claimant must
have “a personal stake in the outcome of the litigation” and must “show that they have
suffered or were in immediate danger of suffering a direct injury”) (internal quotation marks
and citation omitted).

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II. The testimony proffered by Harris was irrelevant
to the existence of his convictions.
Having decided that the jury in Harris’s habitual offender hearing had
the right to determine his ultimate status, this opinion now considers
whether this rendered his testimony relevant.

A. Only evidence tending to prove or disprove the
defendant’s convictions is relevant to habitual offender
status.
In Taylor, this Court addressed a defendant’s claim that he “should
have been permitted to testify about why he did not deserve to be
considered a habitual criminal.” 511 N.E.2d at 1040. The Court disagreed,
holding unanimously that “[t]he only relevant evidence in a habitual
offender proceeding is evidence that proves or disproves the defendant’s
prior felony convictions.” Id. (citing Thomas v. State, 451 N.E.2d 651, 654
(1983)). Taylor’s testimony that he “never hurt anyone” and “did not feel
he was a habitual criminal” might be heard before sentencing. Id. But
Article 1, Section 19 did not require that it be presented to the jury. Id. We
follow this precedent, believing it remains correct even after Seay’s
recognition of the jury’s right to find a defendant not to be a habitual
offender, irrespective of proof of the requisite unrelated convictions.

Generally speaking, irrelevant evidence is inadmissible. Evid. R. 402.
Relevant evidence is admissible unless otherwise provided. Id. Evidence is
relevant if it has “any tendency” to make “more or less probable” a fact
that is “of consequence in determining the action.” Evid. R. 401. In other
words, evidence must have some probative value that is material to an
issue in the case. 1 Kenneth Broun et al., McCormick on Evidence § 185 (8th
ed. supp. 2022). Materiality “looks to the relation between the proposition
that the evidence is offered to prove and the issues in the case.” Id. When
“the evidence is offered to help prove a proposition that is not a matter in
issue, it is immaterial. What is ‘in issue,’ that is, within the range of the
litigated controversy, is determined mainly by the pleadings and the
substantive law.” Id.

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To the extent that relevance depends on substantive criminal law, we
look to the elements and defenses set out in the statute because “the
legislature is free to define the elements of crimes.” Sanchez v. State, 749
N.E.2d 509, 524 (Ind. 2001) (Sullivan, J., concurring in result). Sentencing
enhancements, like convictions, require satisfaction of the elements
defined by the legislature. See McAlpin v. State, 80 N.E.3d 157, 162 (Ind.
2017) (analyzing an “element” of the drug-free-zone enhancement). Just as
the elements of robbery are set forth at Indiana Code section 35-42-5-1, so
the elements of habitual offender status are set forth at Indiana Code
subsections 35-50-2-8(b)‒(d) (defining when a person “is a habitual
offender”). In the latter provisions, we find that the elements of habitual
offender status are the requisite prior, unrelated convictions. Id. The
specific requirements for these convictions depend on the felony level of
the defendant’s present conviction. Id. Relevance in a habitual offender
proceeding depends, therefore, on whether the evidence in question tends
to prove or disprove the necessary unrelated convictions as alleged by the
State.12

We appreciate the strength of the arguments made by Harris and by
Chief Justice Rush’s opinion dissenting from our decision on this issue.
Evidence beyond the bare fact of a defendant’s convictions would inform
the jury in making a discretionary habitual offender status determination.
However, the legislature may generally limit the factual matters a jury can
consider in determining an ultimate issue. See Sanchez, 749 N.E.2d at 521
(Article 1, Section 19 permits the legislature to provide that voluntary
intoxication does not negate criminal intent); Bivins, 642 N.E.2d at 956
(recognizing the intent of the death penalty statute to “limit consideration
to statutorily specified aggravating circumstances.”). A statute that limits
what evidence is admissible in the habitual offender phase does not
offend the jury’s right to determine the law. That right simply means that
the jury may, after receiving proof of the requisite convictions, decide not
to find habitual offender status. Seay, 698 N.E.2d at 734. This responsibility

Other evidence may be relevant in the context of a permissible collateral attack on an
12

unrelated conviction. See I.C. § 35-50-2-8(k); Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012).

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can be discharged without evidence of any facts beyond a defendant’s
convictions. Article 1, Section 19 is not violated by enforcement of the rule
of relevance.

Our examination of the statutory scheme involved here persuades us
that the legislature did not intend the jury to consider a broad range of
circumstances beyond the defendant’s convictions. The habitual offender
statute addresses the status hearing at Indiana Code subsection 35-50-2-
8(h), the provision that was interpreted in Part I.B, supra. When a
defendant has been found guilty by a jury, “the jury shall reconvene for
the sentencing hearing.” I.C. § 35-50-2-8(h). When there has been a bench
trial or guilty plea, however, “the court alone shall conduct the sentencing
hearing under IC 35-38-1-3.” Id. Indiana Code section 35-38-1-3 is the
statute providing for presentence hearings, at which trial courts hear
“facts and circumstances relevant to sentencing” and consider
“aggravating circumstances or mitigating circumstances.” Under the
bifurcated scheme for habitual offender determinations, the jury is not
intended to participate in the presentence hearing. By extension, the jury
is not intended to hear about aggravating and mitigating circumstances
when it determines habitual offender status. This conclusion is reinforced
by Indiana Code subsection 35-50-2-8(i), which provides that the sentence
to be imposed on a habitual offender is for the trial court alone to decide.
The jury need not even be told about the sentencing implications of
habitual offender status. Seay, 698 N.E.2d at 734. Under the statutory
scheme, therefore, the jury determines habitual offender status without
hearing about the wider circumstances of the defendant’s crimes.

The habitual offender statute may also be contrasted with Indiana Code
section 35-50-2-9 (2016), this state’s death penalty statute. The latter
provides for a jury to hear evidence of statutory aggravating and
mitigating circumstances, and then to recommend whether a defendant
convicted of murder should receive an enhanced penalty of death, life
imprisonment without parole, or neither. I.C. §§ 35-50-2-9(d)‒(e). And it
expressly allows the presentation of “[a]ny other circumstances
appropriate for consideration” in mitigation. I.C. § 35-50-2-9(c)(8). This
Court has described the statute as giving the jury a “mercy option.” Pope
v. State, 737 N.E.2d 374, 379 (Ind. 2000).

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The habitual offender statute does not provide for a similar hearing
concerning all the circumstances. There is no indication in it that
defendants may present mitigating evidence in hope of persuading the
jury to choose mercy—nor indeed that the State may present aggravating
evidence. Reading the statute to provide a broad status hearing, even one
limited to the circumstances of the defendant’s crimes, could easily entail
extensive and contested evidence on matters such as the defendant’s
mental state, his degree of participation and culpability, the severity of the
loss or injury caused, victim impact, and so on. All this material may be
appropriate for consideration when determining what sentence to impose.
But, in the habitual offender context, the legislature did not contemplate
the jury’s participation in such a wide-ranging and involved proceeding,
akin to either a presentence hearing or a death penalty hearing. We take it
that the jury is intended to hear evidence bearing on the statutory
elements of habitual offender status. Thus, only evidence concerning the
existence of the defendant’s convictions is relevant for presentation to the
jury.

We perceive no necessary conflict between today’s holding and that of
Hollowell. In that case, the State had introduced the chronological case
summary (CCS or trial court docket) from one of the defendant’s prior
convictions. 753 N.E.2d at 616. The CCS showed that, although the
defendant was convicted of battery, he had initially been charged with
attempted murder. Id. It also contained an incorrect statement that the
defendant was convicted of attempted murder and detailed numerous
probation violations. Id. & n.7. Furthermore, the defendant had stipulated
to the conviction. Id. at 616. Nevertheless, a majority of this Court held
that the CCS was relevant evidence for proving the defendant’s “predicate
felonies,” and not unfairly prejudicial. Id. at 617. 13 The opinion then stated:
“Because ‘the jury is the judge of both the law and facts as to [the habitual
offender determination],’ the facts regarding the predicate convictions are

13Justice Rucker dissented in part (with Justice Dickson joining him) on the grounds that
admitting the CCS likely eliminated the defendant’s chance of obtaining mercy. 753 N.E.2d at
618.

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relevant to the jury’s decision whether or not to find a defendant to be a
habitual offender.” Id. (quoting Seay, 698 N.E.2d at 737). There is some
ambiguity in the intended scope of the phrase “the facts regarding the
predicate convictions.” We read it narrowly. The CCS did not provide any
potentially pertinent information about the circumstances of the
conviction, other than the fact of the conviction itself, so the holding did
not require any broadening of relevance beyond the existence of the
convictions alleged. 14 And the opinion did not explicitly reconsider and
disavow this Court’s decision in Taylor. 15

To allow the circumstances of prior convictions to come in would
contradict the purpose of giving the jury the right to determine habitual
offender status. The jury can consider mercy because it enjoys “more
latitude in making a habitual offender determination than in determining
guilt or innocence.” Walden, 895 N.E.2d at 1186. The mercy option is
provided “because the stakes are so high” when a defendant faces a
habitual offender enhancement. Id. at 1184. 16 The circumstances of crimes,
however, often paint the defendant in a poor light. The chance for mercy
would be undermined if the State were permitted to introduce evidence
showing not only that a defendant satisfied the definition of habitual
offender, but, also, that he deserved to be deemed one because of
additional circumstances.

The defendant’s unproven attempted murder charge and his probation violations could not
14

possibly be circumstances relevant to his habitual offender status.
15We also find no conflict with Warren v. State, which held that a habitual offender jury which
did not try the underlying felony could be informed of what offense the defendant had been
convicted for, namely murder. 769 N.E.2d 170, 171–72 (Ind. 2002). The jury could hear the
“nature” or “identity” of the conviction, not its circumstances. Id. at 172.
16In Holden, this Court examined whether Article 1, Section 19 sanctions a form of jury
nullification in a guilt-phase trial. 788 N.E.2d at 1254. The decision distinguished between the
jury determining the law, which was approved, and disregarding it, which was not. Id. at
1254–55. This distinction is not involved in today’s decision because the habitual offender
statute provides the jury “slightly more leeway than Holden authorizes in the guilt phase.” See
Walden, 895 N.E.2d at 1184. The habitual offender jury does not have to impose habitual
offender status even when it finds that the defendant has the necessary convictions as defined
by statute. Id. at 1185.

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Of course, this decision leaves defendants with fewer resources than
they might wish for encouraging a jury to show mercy. But nothing in the
decision precludes a defendant from arguing that their present and
unrelated convictions are not so serious, recent, or similar in nature as to
warrant habitual offender status. And, since the habitual offender jury
will ordinarily have tried the present conviction, the parties may refer in
argument to the circumstances of that felony, to the extent that they came
out in the first phase. A defendant may sometimes convince a jury that it
would simply be too harsh to pronounce them a habitual criminal. In this
way, the jury can “make sure that the substantive law as written does not
become overreaching so as to defeat reasonable goals of justice.” Id. at
1188 (Rucker, J., dissenting).

B. Harris was not entitled to present the circumstances of
his crimes in an effort to persuade the jury to show
mercy.
The habitual offender statute and the charging information filed by the
State determined the issues in the habitual offender phase of this case. A
person convicted of a Level 3 felony “is a habitual offender” if the State
proves two prior, unrelated felonies, at least one of which is not a Level 6
or Class D felony. I.C. § 35-50-2-8(b). The information here alleged, and
Harris admitted, two qualifying felonies. Evidence tending to prove or
disprove his alleged convictions was relevant. Any other evidence was
immaterial and irrelevant.

We agree with the trial court that none of the testimony Harris
proffered was relevant. He attempted to testify about the circumstances of
two of his crimes, namely his present robbery conviction and a prior,
unrelated robbery conviction. As to his present conviction, Harris would
have told the jury about his PTSD, medication difficulties, and intent to
rehabilitate himself. Because this testimony could not serve to disprove
the existence of Harris’s unrelated convictions, the trial court properly
excluded it as irrelevant. And, by waiving a jury trial in the guilt phase,
Harris turned down his opportunity for a jury to hear the circumstances of
his crimes of conviction. As to his unrelated robbery, Harris would have

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told the jury that he was in fact innocent and only pled guilty because he
did not know of his right to a trial. Harris does not dispute that the trial
court correctly excluded this testimony as a prohibited collateral attack on
a prior conviction. See I.C. § 35-50-2-8(k); Dexter v. State, 959 N.E.2d 235,
238 (Ind. 2012) (a collateral attack is permitted during habitual offender
proceedings only if “the court documents on their face raise a
presumption that the conviction is constitutionally infirm”).

III. Neither Article 1, Section 13 nor federal
constitutional protections entitled Harris to
present his testimony.
Article 1, Section 13 of the Indiana Constitution specifically guarantees
a criminal defendant’s right “to be heard by himself and counsel.” This
provision “places a unique value upon the desire of an individual accused
of a crime to speak out personally in the courtroom and state what in his
mind constitutes a predicate for his innocence of the charges.” Sanchez, 749
N.E.2d at 520 (internal quotation marks and citation omitted). Several
provisions of the federal constitution, including the Due Process Clause of
the Fourteenth Amendment and the Compulsory Process Clause of the
Sixth Amendment, likewise protect a defendant’s “right to take the
witness stand and to testify in his or her own defense.” Rock v. Arkansas,
483 U.S. 44, 49‒53 (1987). However, as this Court explained in Sanchez,
these rights are subject to “‘established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.’” 749 N.E.2d at 521 (quoting Roach, 695 N.E.2d at
939). The evidentiary rule of relevance is one such limitation. Id. We do
not find the rule, as applied here, to be “arbitrary or disproportionate to
the purposes” it serves, namely to focus the jury’s attention on the
material facts of the prior convictions. See Rock, 483 U.S. at 56. Because
testimony to the circumstances of a defendant’s crimes is irrelevant to the
habitual offender status determination, Harris had no constitutional right
to present it.

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Conclusion
The jury in a habitual offender proceeding must be allowed to make the
ultimate legal determination of whether the defendant has the status of
habitual offender. However, only evidence of the defendant’s alleged
convictions is relevant to that determination. A defendant has no
constitutional right to present irrelevant evidence. Therefore, the trial
court did not err in excluding Harris’s testimony concerning the
circumstances of his crimes.

Transfer is hereby granted, vacating Part II of the Court of Appeals
opinion. Harris’s habitual offender status determination is affirmed. Parts
I and III of the opinion below are summarily affirmed. The case is
remanded to the trial court for attachment of the habitual offender
sentence enhancement to the sentence for robbery, as ordered in Part III of
the opinion below.

Molter, J., concurs in Parts II and III, except the last two paragraphs
of Part II.A, and in the judgment, with separate opinion in which
Massa, J., joins.
Rush, C.J., concurs in Part I and dissents from Parts II and III, with
separate opinion in which Slaughter, J., joins in part.
Slaughter, J., dissents with separate opinion.

ATTORNEYS FOR APPELLANT
Joel M. Schumm
Indianapolis, Indiana

Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 20 of 21
George P. Sherman
Office of the Attorney General
Indianapolis, Indiana

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 21 of 21
Molter, J., concurring in part and in the judgment.

I concur in the Court’s judgment and Parts II (except for the last two
paragraphs of II.A) and III of the lead opinion. As Part II explains, the
evidence Harris proffered was irrelevant, so the trial court did not err by
excluding it.

Only relevant evidence is admissible; evidence is relevant only if it
makes a material fact more or less probable; and materiality is measured
by the claims and defenses at issue. Jenkins v. State, 627 N.E.2d 789, 798
(Ind. 1993). At issue here is the State’s allegation that Harris is a habitual
offender, so we look to the habitual offender statute, Indiana Code section
35-50-2-8, to determine what is material. All that is material under that
statute is whether the defendant has qualifying prior convictions, and
because the evidence Harris proffered—his own testimony about his
mental health struggles, his reaction to medication, and his efforts at
rehabilitation—was not material to whether he has qualifying prior
convictions, the trial court properly excluded the evidence. The lead
opinion resolves this appeal through a straightforward application of our
Court’s precedents evaluating the relevancy of evidence in habitual
offender proceedings, so I would end the analysis there rather than
wading into the constitutional analysis that the lead opinion
acknowledges makes no difference in how the Court resolves this appeal.

I.

Part II.A of the lead opinion begins by appropriately acknowledging
we already settled this evidentiary analysis long ago in Taylor v. State,
where Chief Justice Shepard wrote for a unanimous Court that “[t]he only
relevant evidence in a habitual offender proceeding is evidence that
proves or disproves the defendant’s prior felony convictions.” 511 N.E.2d
1036, 1040 (Ind. 1987). Like this case, the defendant in Taylor wished “to
testify about why he did not deserve to be considered a habitual criminal
at that phase of trial,” and like this case, the Court held that his proposed
testimony minimizing the severity of his criminal history could be
considered at sentencing, but it was irrelevant during the habitual
offender phase. Id. Since that time, the General Assembly has more clearly
embraced Taylor’s view by amending the habitual offender statute to say

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that “[t]he role of the jury is to determine whether the defendant has been
convicted of the unrelated felonies.” Ind. Code § 35-50-2-8(h); see Pub. L.
No. 158-2013, § 661, 2013 Ind. Acts 1155, 1604. I would therefore resolve
this case based on Taylor and stop there.

Instead, Part I goes a step further. Article 1, Section 19 of the Indiana
Constitution provides: “In all criminal cases whatever, the jury shall have
the right to determine the law and the facts.” In Seay v. State, 698 N.E.2d
732, 736 (Ind. 1998), we suggested that provision applies to determining
whether a habitual offender enhancement applies, but we later disclaimed
that suggestion as dicta in Walden v. State, 895 N.E.2d 1182, 1185 (Ind.
2008) (“This statement was not necessary to our holding . . . . We need not
and should not have identified the Indiana Constitution as additional
support for the holding and consider those comments to be obiter dicta.”).
Now, Part I revisits the Seay dicta, but there is no need to do so here.

We generally avoid constitutional questions when the appeal can be
resolved on other grounds. See Ind. Land Tr. Co. v. XL Inv. Props., LLC, 155
N.E.3d 1177, 1182–83 (Ind. 2020) (“Observing the longstanding principle
of constitutional avoidance that weighs against deciding constitutional
questions not absolutely necessary to a merits disposition, we find a
narrower path to resolution of this case.” (quotations omitted)). Part II
demonstrates this appeal can be resolved without looking any further
than our Rules of Evidence and the habitual offender statute. Whether one
embraces the Court of Appeals’ view that the General Assembly assigned
a more limited role to the jury and our Constitution permits that, or the
lead opinion’s view that the General Assembly assigned the jury a more
expansive role which the Constitution requires, both the Court of Appeals
and the lead opinion reach the same conclusion: Harris’s proffered
evidence was irrelevant. So, Article 1, Section 19 makes no difference in
how the Court resolves this appeal.

Constitutional avoidance is especially prudent here. Even before we
abandoned the dicta the lead opinion revisits today, Seay began by
acknowledging “that the issue of the jury’s role in the habitual offender
phase of an Indiana criminal trial has been addressed in a number of
opinions which are not entirely reconcilable.” 698 N.E.2d at 734. Now, it

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may be difficult to reconcile the conclusion in the lead opinion that Article
1, Section 19 applies to the habitual offender phase with our previous
conclusion that the General Assembly can exclude the jury from that
phase completely. See Smith v. State, 825 N.E.2d 783, 786 (Ind. 2005)
(holding that the General Assembly could have a judge rather than a jury
decide whether a sentence enhancement applies based on prior
convictions). Law in this area has long been tangled, and I worry that by
unnecessarily pulling on this string we are tightening rather than
loosening the knot.

II.

The lead opinion proposes a new exception to the constitutional
avoidance doctrine, analogizing to federal qualified immunity cases to
create an exception for constitutional issues which are “fully and ably
briefed and argued by appropriate parties,” which concern “judicial
procedure, rather than primary conduct in the world outside,” and which
will inevitably recur. Ante, at 9 n.9. I do not think our case law or federal
case law supports such an exception, including because the qualified
immunity affirmative defense to federal civil rights claims under 42 U.S.C.
§ 1983 is not analogous to the state habitual offender enhancement. Justice
Slaughter’s dissent likewise disclaims any such exception, and I do not
read the Chief Justice’s dissent as embracing this exception either. Instead,
I understand the Chief Justice’s dissent to argue that while the lead
opinion’s Article 1, Section 19 analysis makes no difference in how the
Court resolves this appeal, it should make a difference. But that
conclusion, in my view, rests on a few mistaken premises.

First, I disagree that our jurisprudence reflects a failure to seriously
analyze Article 1, Section 19. Hundreds of opinions from our Court and
the Court of Appeals cite that provision, and many of the cases the dissent
discusses carefully analyze it. Justice Rucker wrote a law review article
devoted entirely to analyzing Article 1, Section 19. Hon. Robert D. Rucker,
The Right to Ignore the Law: Constitutional Entitlement Versus Judicial
Interpretation, 33 Val. U. L. Rev. 449 (1999). After writing that article, he
wrote an opinion for the Court explaining that “[t]he general thrust of the
article is that Article I, Section 19 amounts to a constitutionally permissible

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form of jury nullification.” Holden v. State, 788 N.E.2d 1253, 1254 (Ind.
2003). But then he and his colleagues went even deeper into their
constitutional analysis, and they unanimously concluded: “Although
there may be some value in instructing Indiana jurors that they have a
right to ‘refuse to enforce the law’s harshness when justice so requires,’ the
source of that right cannot be found in Article I, Section 19 of the Indiana
Constitution.” Id. at 1255 (emphasis added). They further explained that
“[n]otwithstanding Article 1, Section 19 of the Indiana Constitution, a jury
has no more right to ignore the law than it has to ignore the facts in a
case.” Id. (quotations omitted).

There may be fair criticism of our precedents analyzing habitual
offender proceedings, including that our Court has acknowledged some of
them are contradictory. Seay, 698 N.E.2d at 734. And we continue the
volley today: After we held Article 1, Section 19 does not apply to habitual
offender enhancements, Taylor, 511 N.E.2d at 1040 (“The habitual offender
finding is a means of sentencing and is not a determination of law.”), we
said it does, Seay, 698 N.E.2d at 734–35 (stating that Article 1, Section 19
applies to “the status determination in habitual offender proceedings”);
then we reversed course, explaining our previous suggestion that Article
1, Section 19 applies was mere dicta, Walden, 895 N.E.2d at 1185 (“This
statement [in Seay] was not necessary to our holding . . . . We need not and
should not have identified the Indiana Constitution as additional support
for the holding and consider those comments to be obiter dicta.”); and
now, through more dicta, the lead opinion reiterates the Seay dicta our
Court previously disavowed. But whatever flaws this approach reveals,
they do not include a failure to grapple with Article 1, Section 19.

Second, I do not understand Taylor to be “long-repudiated.” Post, at 1
(opinion of Rush, C.J.). Our Court has cited Taylor fifteen times and has
never even called it into question or suggested any part of it is abrogated,
let alone overruled or otherwise repudiated it. Even Seay cited Taylor
favorably for its analysis of Article 1, Section 19. Seay, 698 N.E.2d at 734
(citing Taylor for the proposition that “we have long held that art. I, § 19,
does not apply in penalty determinations” (emphasis omitted)). True, the
twenty-six appellate opinions citing Taylor rely on the case for reasons
unrelated to relevancy. But Taylor was the last in a line of unanimous

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opinions going back to the enactment of the habitual offender statute at
issue. Taylor reaffirmed yet again a straightforward relevancy analysis, so
there has been little need since to cite it for that purpose.

To be sure, the opinions in Hollowell v. State, 753 N.E.2d 612, 617 (Ind.
2001), and Warren v. State, 769 N.E.2d 170, 171–72 (Ind. 2002), did not cite
or discuss Taylor, and they instead cited Seay for the proposition that
because the jury is the judge of both the law and facts, the jury can be
informed of facts related to the predicate convictions so long as the
evidence is admissible under the Rules of Evidence. I do not read those
cases as overruling sub silentio the application of the Rules of Evidence in
Taylor, and those cases predate our statement in Walden receding from
Seay’s constitutional analysis as dicta. My dissenting colleagues have a
different view, reading Sample v. State, 932 N.E.2d 1230, 1233 (Ind. 2010),
as overruling Walden sub silentio. But given that Walden expressly held that
Seay’s Article 1, Section 19 analysis was dicta after Seay already
acknowledged the Court’s conflicting prior precedents, I am reluctant to
read a unanimous decision just two years after Walden as implicitly
reversing course yet again. In any event, even if there is a conflict in our
case law which needs to be resolved, Taylor presents the more
straightforward application of our Rules of Evidence consistent with how
those rules generally apply in the criminal context.

Third, my dissenting colleagues read my relevancy analysis as based on
“legislative intent.” Post, at 13 (opinion of Rush, C.J.). But when analyzing
the habitual offender statute, I have only relied on statutory text, and I
simply suggest that, as with any allegation the State makes that someone
has run afoul of a criminal statute, we should look to the words in the
legislature’s statute relating to the alleged criminal behavior, discern the
elements those words establish, and then evaluate proffered evidence to
determine whether it is material to those elements.

The Seay Court, I acknowledge, explained that “[i]f the legislature had
intended an automatic determination of habitual offender status upon the
finding of two unrelated felonies, there would be no need for a jury trial
on the status determination.” Id. at 1 (quoting Seay, 698 N.E.2d at 736). But
after our Court said that, the General Assembly amended the habitual

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 5 of 7
offender statute to state explicitly that all the jury is supposed to consider
is whether the defendant has the required unrelated felonies. I.C. § 35-50-
2-8(h) (“The role of the jury is to determine whether the defendant has
been convicted of the unrelated felonies.”).

Fourth, the Chief Justice’s dissent explains that a jury deciding whether
the State has satisfied its burden of proving the defendant is a habitual
offender must decide two issues, not one: (1) whether the defendant has
accumulated the requisite number of convictions, and (2) “whether, based
on those convictions and the primary felony, the defendant should be
given the status of habitual offender.” Post, at 1 (opinion of Rush, C.J.). All
agree the first element derives from the habitual offender statute. The
dissent says the second element derives from Article 1, Section 19’s
requirement that “[i]n all criminal cases whatever, the jury shall have the
right to determine the law and the facts.” But it is unclear how Article 1,
Section 19—which by its express terms applies to all criminal cases
whatever—is the source of an additional element only for habitual
offender enhancements.

Take this case, for example. One of Harris’s charges was Level 3 felony
armed robbery, and the elements for that offense are (1) knowingly or
intentionally (2) taking property from another person (3) by using or
threatening force or by putting any person in fear (4) while armed with a
deadly weapon or causing bodily injury. I.C. § 35-42-5-1(a). There is no
suggestion that Article 1, Section 19 somehow adds an element so that the
fact finder must also decide whether Harris should be tagged with the
status of being a robber. And there is no reason to add that element for the
habitual offender enhancement either.

Article 1, Section 19 is especially ill suited to add an element to the
habitual offender enhancement because we have held that “[t]he habitual
offender finding is a means of sentencing and is not a determination of
law,” Taylor, 511 N.E.2d at 1040, and we have concluded (and the lead
opinion reaffirms) that the General Assembly can empower a judge rather
than a jury to decide whether a sentence enhancement applies based on
prior convictions, Smith, 825 N.E.2d at 786. It is difficult to square the
notion that the Article 1, Section 19 jury right adds an extra element for

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 6 of 7
habitual offender enhancements with the notion that Article 1, Section 19
permits the General Assembly to eliminate the jury’s role completely.

Thus, the statement in the unanimous Taylor opinion that “[t]he only
relevant evidence in a habitual offender proceeding is evidence that
proves or disproves the defendant’s prior felony convictions” is consistent
with how we typically assess relevancy in the criminal context. 511 N.E.2d
at 1040. It neither “dilutes” nor “nullifies” the jury’s role. Post, at 10
(opinion of Rush, C.J.). Rather, it leaves the jury’s role the same as with
any other criminal allegation.

III.

Our Court’s precedents establish that the trial court properly excluded
Harris’s proffered evidence as irrelevant. I therefore concur in the
judgment.

Massa, J., joins.

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 7 of 7
Rush, C.J., concurring in part and dissenting in part.

I concur in Part I in which the lead opinion concludes that, under
Article 1, Section 19, the jury in a habitual-offender proceeding must
decide two issues: (1) whether the defendant has accumulated the
requisite number of prior unrelated felony convictions; and (2) whether,
based on those convictions and the primary felony, the defendant should
be given the status of habitual offender. However, I respectfully dissent
from Part II in which the lead opinion concludes the only evidence
relevant to those two issues is that tending “to prove or disprove the
necessary unrelated convictions.” Ante, at 14 (opinion of Goff, J.). For
similar reasons, I also respectfully dissent from Part III. While I
understand the decision to address Harris’s claims despite waiver, I
disagree that all “testimony to the circumstances of a defendant’s crimes is
irrelevant to the habitual offender status determination.” Id. at 19.

As this Court aptly recognized over two decades ago, “If the legislature
had intended an automatic determination of habitual offender status upon
the finding of two unrelated felonies, there would be no need for a jury
trial on the status determination.” Seay v. State, 698 N.E.2d 732, 736 (Ind.
1998). But today, three of my colleagues reject that well-settled principle
and authorize such an automatic determination—particularly in cases like
this where the parties stipulate to the prior convictions.

To be sure, as the lead opinion points out, defendants have “no
constitutional right to present irrelevant evidence.” Ante, at 20 (opinion of
Goff, J.). But the relevancy of evidence must be analyzed in relation to the
issues to be determined. And, as the lead opinion correctly holds, juries in
habitual-offender proceedings have the constitutional right to
independently decide two issues. Yet, both the lead and concurring
opinions erroneously conclude that the jury is not entitled to consider any
evidence relevant to aid the jury in deciding the second issue. This
position, as shown below, improperly resurrects long-repudiated
precedent and conflicts with not only caselaw analyzing Article 1, Section
19 but also with the provision’s plain text and the history surrounding its
ratification.

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Article 1, Section 19 unequivocally confers on juries broad
constitutional authority: “In all criminal cases whatever, the jury shall
have the right to determine the law and the facts.” Ind. Const. art. 1, § 19.
This provision, embedded within our Bill of Rights, enshrines an
“essential value[] which the legislature may qualify but not alienate.” Price
v. State, 622 N.E.2d 954, 960 (Ind. 1993). Yet, as recognized by my former
colleague Justice Rucker nearly twenty-five years ago, Article 1, Section 19
“has never received serious constitutional analysis.” Honorable Robert D.
Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial
Interpretation, 33 Val. U. L. Rev. 449, 474 (1999). His observation remains
true today.

This case presents an opportunity to conduct such an analysis. History
reveals that our framers and ratifiers intended for Article 1, Section 19 to
confer on criminal juries distinct, broad constitutional authority. And our
precedent applying the provision establishes its importance, clarifies the
scope of the jury’s constitutional right in determining whether a
defendant is a habitual offender, and illustrates fundamental flaws in both
the lead and concurring opinions’ relevancy analyses. I thus begin with a
historical analysis of Section 19.

I. The text of Article 1, Section 19, its history, and
precedent applying the provision reveal that
criminal juries have distinct constitutional
authority.
When analyzing provisions of the Indiana Constitution, our approach
is well-settled. We examine “the language of the text in the context of the
history surrounding its drafting and ratification, the purpose and
structure of our Constitution, and case law interpreting the specific
provisions.” Hoagland v. Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 741
(Ind. 2015) (quoting Nagy ex rel. Nagy v. Evansville–Vanderburgh Sch. Corp.,
844 N.E.2d 481, 484 (Ind. 2006)). In undertaking this examination, we
carefully defer to the provision’s language “as though every word had

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been hammered into place.” Holcomb v. Bray, 187 N.E.3d 1268, 1277 (Ind.
2022) (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013)).

A. The framers and ratifiers of our Constitution intended
an expansive role for juries in criminal cases.
During the colonial era, Americans were generally skeptical of judges
and preferred that their rights and liberties rest in the hands of their peers.
See, e.g., Jeffrey S. Sutton, Who Decides? States as Laboratories of
Constitutional Experimentation 34–35 (2022). It is thus not surprising that
“early state constitutions enshrined the right to trial by jury.” Id. at 34.
Indeed, Indiana’s 1816 Constitution enshrined that right in both civil and
criminal cases. Ind. Const. of 1816, art. 1, §§ 5, 13. And it also gave juries
the authority to determine the law and the facts. Id. § 10. Though this
authority was limited to “indictments for libels” and to “the direction of
the court,” id., these restrictions were short-lived.

In 1850, delegates from across Indiana convened to amend the 1816
Constitution. Most of the delegates were Jacksonian Democrats who
exhibited a “fear of governmental power” and a “faith in the people.”
Rucker, supra, at 476. Consistent with these principles, the delegates
during the 1850–51 constitutional convention expanded “the Bill of Rights
from that which existed under” our first Constitution. Id. at 475. Article 1,
Section 10 is one such example. And this provision underwent significant
revision, resulting in an expanded role for juries in criminal cases.

Notably, the framers and ratifiers rejected an early proposal to ensure
juries lacked a law-determining role in criminal cases. Just four days after
the convention assembled, a resolution—referred to the committee on law
reform—was offered to “enquire into the expediency of engrafting on the
Constitution a provision that the jury in criminal cases find upon the facts
of the issue only.” Journal of the Convention of the People of the State of
Indiana to Amend the Constitution 60 (Indianapolis, A.H. Brown 1851)
(emphasis added) [hereinafter Journal]. The committee reported back
weeks later deeming the resolution “inexpedient” and recommending that
it “lie on the table.” Id. at 225. The delegates agreed. Id. at 226.

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Meanwhile, when the committee on rights and privileges first
submitted proposed revisions to Article 1, Section 10, the committee
struck language from the provision. The revised version read, “In all
prosecutions for libel, the truth of the matter alleged to be libellous may be
given in [] justification, and the jury shall have the right to determine the
law and the facts.” Id. at 187. So, while the jury’s constitutional authority
was arguably still limited to libel prosecutions, it was no longer confined
by the “direction of the court.” Weeks later, the revised version was read a
second time and, with no amendments offered, engrossed for a third
reading. Id. at 571.

Upon that third reading, delegate Henry P. Thornton of Floyd County
motioned to recommit Section 10, expressing that it “is hardly full
enough.” 2 Report of the Debates and Proceedings of the Convention for the
Revision of the Constitution of the State of Indiana 1389 (Indianapolis, A.H.
Brown 1851) [hereinafter Debates]. More specifically, while the provision
guarded “the rights of individuals who are prosecuted for libel
criminally,” he was concerned that it was “liable to misconstruction” by
potentially precluding a party in a civil case from offering truth as a
defense. Id. In arguing for modification, he noted the “well settled law,
that, in a criminal case, the jury has an unquestionable right to decide
upon questions of law as well as of fact, although they may differ from the
court in so doing.” Id.; see Warren v. State, 4 Blackf. 150, 150–51 (Ind. 1836)
(per curiam). To both engraft that well-settled law and ensure the jury had
the same authority in civil libel actions, Delegate Thornton proposed the
following amendment: In all prosecutions for libel, as with any criminal
so with any civil case, the truth of the matter alleged to be libelous may
be given in justification, and the jury shall have the right in all criminal
cases to determine the law and the facts. Debates, supra, at 1389. The
amendment passed without further discussion. Id.; Journal, supra, at 579.

One month later, the committee on revision, arrangement, and
phraseology reported to the delegates several proposed constitutional
provisions. Journal, supra, at 866–73. In that report, the committee retained
some of the previously accepted language in Article 1, Section 10, which
declared, “In all prosecutions for libel, the truth of the matters alleged to
be libellous, may be given in justification.” Id. at 872. And the committee

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placed a new requirement in Article 1, Section 19, which declared, “In all
criminal cases whatever, the jury shall have the right to determine the law
and the facts.” Id. The delegates concurred in the report, and the two
provisions were ultimately adopted. Id. at 881; Debates, supra, at 1975,
2067.

This history reveals that our framers and ratifiers intended to confer
significant authority on juries in criminal cases. The delegates rejected a
limiting proposal and, by separate provision, enshrined the right of a
criminal jury to determine the law and the facts “[i]n all criminal cases
whatever,” Ind. Const. art. 1, § 19, crystallizing their intent that this
authority apply in all types of criminal cases—without limitation. Cf. City
Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443, 448 (Ind.
2001) (concluding that “inclusion of the phrase ‘in any case whatever’” in
Article 1, Section 3 demonstrated “the framers’ and ratifiers’ intent to
provide unrestrained protection for the articulated values”). In fact, only
three other state constitutions enshrine this right to jurors, but none of
their respective provisions define the scope of the jury’s right as broadly
as our unique provision. Compare Ind. Const. art. 1, § 19, with Md. Const.
Decl. of Rts., art. 23 (“In the trial of all criminal cases, the Jury shall be the
Judges of Law, as well as of fact, except that the Court may pass upon the
sufficiency of the evidence to sustain a conviction.”), Or. Const. art. I, § 16
(“In all criminal cases whatever, the jury shall have the right to determine
the law, and the facts under the direction of the Court as to the law, and
the right of new trial, as in civil cases.”), and Ga. Const. art. I, § 1, para.
11(a) (“In criminal cases . . . the jury shall be the judges of the law and the
facts.”).

In the years following the convention, our precedent routinely
recognized the broad scope of a jury’s authority under Article 1, Section 19
even though the Court eventually began to impose limitations.

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B. Following the adoption of Article 1, Section 19, this
Court consistently recognized the provision’s
importance and scope but ultimately curtailed the jury’s
authority relating to instructions it receives.
During the mid-to-late 1800s, the Court frequently acknowledged the
jury’s constitutional right to determine the law and the facts in criminal
cases by upholding jury instructions as well as arguments from counsel
invoking the right and by disapproving of jury instructions impairing it.
See, e.g., Carter v. State, 2 Ind. 617, 619 (1851); Lynch v. State, 9 Ind. 541, 541
(1857); Williams v. State, 10 Ind. 503, 505 (1858); McDonald v. State, 63 Ind.
544, 546–47 (1878); Nuzum v. State, 88 Ind. 599, 600–01 (1883); Hudelson v.
State, 94 Ind. 426, 429–31 (1884).

In the 1920s and 1930s, however, limitations were imposed on the jury’s
authority. The Court, for example, declared that Article 1, Section 19 did
not extend to questions concerning the admissibility of evidence, Harlan v.
State, 190 Ind. 322, 130 N.E. 413, 418 (1921), did not include a right to make
law, Trainer v. State, 198 Ind. 502, 154 N.E. 273, 275 (1926), and did not
mean the jury had the right to fix punishment for crimes, Mack v. State, 203
Ind. 355, 180 N.E. 279, 283 (1932).

Following these decisions, precedent applying Article 1, Section 19 has
predominantly concerned appeals relating to jury instructions. In 1957, for
example, the Court held that a trial court properly refused to instruct
jurors that they were “the exclusive judges of the law” and that they had
“a right to disregard” the court’s other instructions. Beavers v. State, 236
Ind. 549, 141 N.E.2d 118, 120, 123 (1957). In reaching that decision, the
Court reasoned, “Neither the jury nor the judge has a ‘right’ to disregard
the law. It may have the power to commit error or do wrong but not the
right.” Id. at 123. And although the Court accepted that “the jury has the
power to go its own way[] and determine the law for itself when it renders
a verdict,” id. at 125, it characterized Article 1, Section 19 as an “archaic
constitutional provision,” id. at 121.

A decade later, however, in Pritchard v. State, 248 Ind. 566, 230 N.E.2d
416, 419–21 (1967), we clarified the Beavers Court’s holding and criticized

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its characterization of Article 1, Section 19. There, the Court reversed a
defendant’s conviction due to an instruction that required the jury to find
the defendant guilty upon finding certain facts. 230 N.E.2d at 421. We held
that such a “mandatory instruction in a criminal case . . . clearly invades
the constitutional province of the jury.” Id. In reaching that conclusion, the
Court explained that Beavers simply stood for the proposition that a
defendant is “not entitled to an instruction telling the jury that they may
‘disregard the law.’” Id. at 420. While it’s true that “the jury is, not strictly
speaking, the sole judge of the law” in every aspect, we clarified that
jurors nevertheless “have the right to determine the law pursuant to the
right conferred by the Constitution.” Id. Acknowledging that right
enshrined in Article 1, Section 19, the Court then renounced Beavers’s
criticism of the provision, opining that it “is far from an outmoded,
archaic anachronism. Rather, despite its venerable age, it appears to be in
the vanguard of modern thinking with regard to the full protection of the
rights of the criminal defendant.” Id. at 421.

After Pritchard, we consistently found no error in cases when the
instructions, considered in their entirety, recognized the jury’s
constitutional right under Article 1, Section 19 and did not impermissibly
invade that right. Holliday v. State, 254 Ind. 85, 257 N.E.2d 679, 682 (1970);
Loftis v. State, 256 Ind. 417, 269 N.E.2d 746, 747–48 (1971); Barker v. State,
440 N.E.2d 664, 670–72 (Ind. 1982). It was against this historical backdrop
that we began considering the application of Article 1, Section 19 in
habitual-offender proceedings before a jury.

II. Article 1, Section 19 requires the jury to make
separate determinations in a habitual-offender
proceeding.
The General Assembly first enacted the habitual-offender statute at
issue here—Indiana Code section 35-50-2-8—in 1977. Pub. L. No. 340, §
121, 1977 Ind. Acts 1533, 1594–95. In a trio of opinions three years later,
this Court addressed, and ultimately rejected, several constitutional
challenges to the statute. Wise v. State, 272 Ind. 498, 400 N.E.2d 114, 118–19

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(1980); Comstock v. State, 273 Ind. 259, 406 N.E.2d 1164, 1167 (1980);
Ferguson v. State, 273 Ind. 468, 405 N.E.2d 902, 908–09 (1980).

Then, during the mid-1980s, we issued a series of opinions addressing
relevant evidence in habitual-offender proceedings. Those cases
concluded—as the lead and concurring opinions do here—that the only
evidence relevant in such a proceeding is that which shows whether the
defendant has been convicted of two prior unrelated felonies. Owens v.
State, 427 N.E.2d 880, 886–87 (Ind. 1981); Ross v. State, 442 N.E.2d 981, 983
(Ind. 1982); Thomas v. State, 451 N.E.2d 651, 654 (Ind. 1983); Taylor v. State,
468 N.E.2d 1378, 1383 (Ind. 1984); Taylor v. State, 511 N.E.2d 1036, 1040
(Ind. 1987). The premise underlying this conclusion was that the only
issue before the jury is whether the defendant is a habitual offender as that
term is defined by statute: that is, whether the defendant has been
previously convicted of two unrelated felonies.

Yet, around the same time, this premise was questioned several times
by Justice Dickson, writing once for the Court and in two separate
opinions. In Mers v. State, 496 N.E.2d 75, 79 (Ind. 1986), we recognized—
for the first time—that a “person cannot be found to be a habitual offender
upon merely two felony convictions.” Rather, there must be three: the
primary felony plus the two prior unrelated felonies. Id. And the jury
must independently determine “whether, based on these three felonies,
defendant’s sentencing status should be that of a habitual offender.” Id.

Just a few weeks later, however, the Court departed from this principle
in Hensley v. State, 497 N.E.2d 1053 (Ind. 1986). There, the majority found
no error in providing the jury with a special verdict form that stated, “We
the jury find beyond a reasonable doubt that the defendant . . . is an
habitual offender in that he has the following prior convictions” and then
listed the alleged convictions to which the jury responded “yes” or “no.”
Id. at 1057. Hearkening back to the premise underlying the pre-Mers cases,
the majority reasoned that “the jury’s function in a habitual offender
proceeding is to determine whether the defendant is a habitual offender as
defined by statute” and that the “verdict form” comported with this
function. Id. Justice Dickson dissented, identifying that the form failed to
account for the jury’s separate constitutional authority under Article 1,

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Section 19 to not find the defendant to be a habitual offender irrespective
of proof establishing the prior convictions. Id. at 1058 (Dickson, J.,
dissenting).

The conflict resurfaced a year later in Duff v. State, 508 N.E.2d 17, 20
(Ind. 1987) (plurality opinion), in which two justices found no error when
a trial court instructed jurors that they were not the finders of law during
a habitual-offender proceeding. Those justices, echoing prior decisions
and ignoring Mers, declared that the jury’s “sole duty” was to determine
“whether or not the defendant has been twice previously convicted of
unrelated crimes.” Id. Writing separately, Justice Dickson again
emphasized that the jury must also determine “whether such two
convictions, when considered along with the defendant’s guilt of the
charged crime, lead them to find that the defendant is a habitual
criminal.” Id. at 23 (Dickson, J., separate opinion).

A decade later, we put an end to the conflict—in two decisions handed
down the same day—by squarely rejecting the premise that a habitual-
offender jury decides only whether a defendant has accumulated the
requisite prior felony convictions. Seay, 698 N.E.2d at 736–37; Parker v.
State, 698 N.E.2d 737, 742 (Ind. 1998). Writing for a unanimous Court in
Seay, Justice Sullivan first expressly overruled precedent “to the extent
that it can be interpreted to mean that art. 1, § 19, does not apply to the
status determination in habitual offender proceedings.” 698 N.E.2d at 734–
35. The Court then adopted the principles set forth by Justice Dickson in
Mers, Hensley, and Duff, ultimately concluding that the jury is the “judge
of both the law and the facts” as to whether a defendant is a habitual
offender “irrespective of the uncontroverted proof of prior felonies.” Id. at
736–37. We reiterated the same sentiment in Parker, declaring that
encompassed within the jury’s right under Article 1, Section 19 is an
“independent and separate authority to determine whether the defendant
is a habitual offender after it has concluded that the State has properly
proven two prior felonies.” 698 N.E.2d at 742.

Yet, the concurring opinion asserts that the Court merely “suggested”
Article 1, Section 19 “applies to determining whether a habitual offender
enhancement applies.” Ante, at 2 (opinion of Molter, J.). To the contrary, in

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Seay we explicitly adopted “the Court of Appeals opinion regarding the
applicability of art. I, § 19, to habitual offender proceedings.” 698 N.E.2d
at 733; see also Parker, 698 N.E.2d at 742 (referencing Seay in recognizing
that “we definitively established that art. I, § 19, is applicable during
habitual offender proceedings”). And because Article 1, Section 19 applies
in such proceedings, the jury has the constitutional right to make a status
determination independent of its factual determination regarding a
defendant’s prior felony convictions.

We have consistently applied these principles with one exception. As
the lead and concurring opinions point out, in Walden v. State, 895 N.E.2d
1182, 1185 (Ind. 2008), the Court—in a 3-2 decision—walked back Seay’s
reliance on Article 1, Section 19. But the majority opinion in Walden did
not mention Parker, and it explicitly referenced Seay’s holding in the
context of jury instructions. Walden, 895 N.E.2d at 1185. More importantly,
two years later, we reaffirmed Seay’s constitutional basis in a unanimous
opinion. Sample v. State, 932 N.E.2d 1230, 1232–33 (Ind. 2010). Thus,
contrary to the concurring opinion, we have neither “abandoned” nor
“disavowed” the principle that Section 19 applies in habitual-offender
proceedings. Ante, at 2, 4 (opinion of Molter, J.). And the lead opinion
accurately concludes that “Seay was correct in its holding and its original
constitutional basis.” Ante, at 9 (opinion of Goff, J.).

That holding and its constitutional basis, coupled with the above
history and applicable precedent, undeniably establish that the jury, in
exercising its constitutional right under Article 1, Section 19, must make
two determinations in a habitual-offender proceeding: (1) whether the
defendant has accumulated the requisite number of prior unrelated felony
convictions; and (2) whether, based on those convictions and the primary
felony, the defendant should be given the status of a habitual offender.
Yet, three of my colleagues have decided to restrict the jury’s
constitutional right by prohibiting any evidence relevant to the status
determination. As our precedent has made clear, their position not only
resurrects long-repudiated reasoning, but it also dilutes—if not nullifies—
the jury’s constitutional right in habitual-offender proceedings.

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III. Evidence is relevant in a habitual-offender
proceeding if it assists the jury in making either of
its constitutionally required determinations.
Both the lead and concurring opinions rely on Taylor v. State, 511
N.E.2d 1036 (Ind. 1987) and legislative intent to conclude that the only
evidence relevant in a habitual-offender proceeding is that which tends to
prove or disprove the defendant’s prior unrelated felony convictions.
Neither basis supports this conclusion. Taylor’s relevancy determination
was grounded on a premise we have since consistently rejected, and
legislative intent cannot override the requirements of the Indiana
Constitution.

Recall that the basis for the Taylor Court’s relevancy conclusion was
that “[t]he only relevant evidence in a habitual offender proceeding is
evidence that proves or disproves the defendant’s prior felony
convictions.” 511 N.E.2d at 1040. But, as illustrated above, we
unequivocally renounced that position eleven years later in Seay and
Parker when we held that Article 1, Section 19 applies in habitual-offender
proceedings and clarified that the provision requires the jury to make an
independent status determination. And, in subsequent years, we
reiterated these conclusions multiple times. Hollowell v. State, 753 N.E.2d
612, 617 (Ind. 2001); Winn v. State, 748 N.E.2d 352, 360 (Ind. 2001); Warren
v. State, 769 N.E.2d 170, 171–72 (Ind. 2002); Smith v. State, 825 N.E.2d 783,
785–86 (Ind. 2005); Sample, 932 N.E.2d at 1232.

Thus, the concurring opinion is simply incorrect that “Article 1, Section
19 makes no difference” in this case. Ante, at 2 (opinion of Molter, J.). It
makes all the difference. Our precedent applying that provision in
habitual-offender proceedings firmly establishes that the jury must decide
whether the defendant should be given the status of habitual offender.
And that status decision turns on a consideration of the prior convictions
as well as the primary felony—a principle we applied in our only two
decisions to consider relevant evidence in habitual-offender proceedings
after Seay and Parker.

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Indeed, both Hollowell and Warren repudiate Taylor’s relevancy
conclusion. In Hollowell, despite the parties’ stipulating to the defendant’s
prior convictions, we held that the trial court docket for one of them was
relevant “to the jury's decision whether or not to find a defendant to be a
habitual offender.” 753 N.E.2d at 617. As we explained, “the facts
regarding the predicate convictions are relevant” to the status
determination because the jury must independently decide that issue
irrespective of uncontroverted proof establishing the predicate
convictions. Id. And, precisely for this reason, we held in Warren that
“[t]he nature of the primary felony” was relevant to the jury’s status
decision. 769 N.E.2d at 172.

It is telling that neither Hollowell nor Warren cited Taylor. In fact, until
today, no appellate court has ever cited Taylor for its relevancy conclusion.
So, although the concurring opinion would “resolve this case based on
Taylor and stop there,” ante, at 2 (opinion of Molter, J.), there is no legal
basis for doing so. Indeed, as indicated above, it was eleven years after
Taylor that we held Article 1, Section 19 applies in habitual-offender
proceedings and requires the jury to independently make a status
determination. By now resurrecting Taylor’s disavowed position, my
colleagues should recognize that the relevancy analysis in both Hollowell
and Warren is abrogated. Applying Taylor, the docket in Hollowell is not
relevant because the parties’ stipulation proved the defendant’s prior
convictions, and the nature of the primary felony in Warren is not relevant
because it is unrelated to the prior convictions. Those decisions, however,
properly followed and applied controlling precedent.

Aside from improperly resurrecting and relying on Taylor, the lead and
concurring opinions also hinge their relevancy conclusions on the notion
that the legislature intended that the jury consider only evidence related
to the existence of the defendant’s prior convictions. The legislature can
certainly impose statutory limits on the aggravating circumstances a trial
court can consider when imposing a death sentence, Bivins v. State, 642
N.E.2d 928, 955–56 (Ind. 1994), or on a defendant’s ability to use voluntary
intoxication to negate the requisite mens rea of a crime by reason of
voluntary intoxication, Sanchez v. State, 749 N.E.2d 509, 521 (Ind. 2001). But
the legislature cannot impose limits—either by statute or through its

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intent—that conflict with express constitutional requirements. See, e.g.,
Strong v. Daniel, 5 Ind. 348, 350 (1854). And because the legislature has
entrusted the jury with making a habitual-offender determination, Article
1, Section 19 applies and vests the jury with the constitutional right to
decide whether the defendant should be given habitual-offender status.
Thus, excluding all evidence relevant to that decision impermissibly
impinges on the jury’s constitutional authority.

For these reasons, the relevancy analysis embraced by both the lead
and concurring opinions erroneously relies on Taylor and legislative
intent. And contrary to the concurring opinion’s assertion, this is not a
case in which “[c]onstitutional avoidance is especially prudent.” Ante, at 2
(opinion of Molter, J.). In fact, exercising constitutional avoidance isn’t
even appropriate here. To be sure, it is our duty “not to enter upon the
consideration of a constitutional question where the court can perceive
another ground on which it may properly rest its decision.” City of New
Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001) (quoting Bayh v.
Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991)) (emphasis added). But, as
demonstrated above, Article 1, Section 19 unquestionably applies to
habitual-offender proceedings. And neither Taylor nor legislative intent is
instructive as to what evidence is relevant for the jury to consider when
making its constitutionally required determinations in such a proceeding.
Thus, neither presents “another ground” to “properly” find Harris’s
proffered testimony irrelevant.

Rather, our precedent establishes that in a habitual-offender proceeding
before a jury, two types of evidence are relevant. The first is evidence that
assists the jury in making its first determination, which plainly includes
evidence that tends to prove or disprove the existence of the requisite
convictions. And the second is evidence that assists the jury in making its
status determination, which turns on a consideration of the primary
felony and the prior unrelated felonies. As the lead opinion observes, the
jury makes this decision “irrespective of proof of the requisite unrelated
convictions.” Ante, at 13 (opinion of Goff, J.). Thus, to exercise its
constitutional authority under Article 1, Section 19, the jury must be able
to consider evidence relevant to the status determination, which
necessarily may extend beyond the existence of the prior convictions.

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Evidence is relevant if it (1) tends to make a fact more or less probable
than it would be without the evidence, and (2) the fact is of consequence
in determining the action. Ind. Evidence Rule 401. Simply put, “relevant
evidence is probative evidence,” Shane v. State, 716 N.E.2d 391, 398 (Ind.
1999); that is, anything “that tends to prove or disprove a point in issue,”
Probative Evidence, Black’s Law Dictionary (11th ed. 2019); see also Hill v.
Gephart, 62 N.E.3d 408, 410 (Ind. Ct. App. 2016) (recognizing that evidence
is relevant if it “provides background information that would be helpful
to a jury”), trans. denied. As we have previously acknowledged, this liberal
standard “sets a low bar.” Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017).

Applying these principles to habitual-offender proceedings before a
jury, evidence is relevant if it tends to prove or disprove the two issues the
jury must decide: (1) whether the defendant has accumulated the requisite
number of prior unrelated felony convictions; and (2) whether, based on
those convictions and the primary felony, the defendant should be given
the status of habitual offender. Deciding the second issue may involve the
jury considering circumstances closely related to the three convictions,
such as the defendant’s age at the time of each or the nature of the
offenses. Indeed, when offered, this evidence is necessary for the jury to
exercise its constitutional right under Article 1, Section 19.

But there are limits. Our trial courts make relevancy determinations all
the time—they are well-equipped to decide whether proffered evidence is
closely related to the defendant’s three convictions and thus relevant to
the jury’s status decision. And those judges retain discretion to exclude
such evidence “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403.

Here, the parties stipulated to the existence of Harris’s prior unrelated
convictions, and, outside the presence of the jury, Harris testified about
those convictions as well as the primary felony. The stipulation
established the existence of the requisite prior convictions, thus entitling
the trial court to exclude Harris’s proposed testimony that collaterally
attacked one of the convictions. But Harris’s testimony also included
circumstances closely related to the primary felony offense. And because

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the jury was empaneled solely for Harris’s habitual-offender proceeding,
it did not have the opportunity to hear any evidence about that offense.
Thus, Harris’s excluded testimony included potentially relevant evidence
in that it could have aided the jury in deciding whether he should be
given the status of habitual offender.

For these reasons, I would hold that the trial court abused its discretion
in prohibiting the jury from hearing Harris’s testimony about the primary
felony. I would therefore vacate the habitual-offender adjudication and
remand this case to the trial court for a new habitual-offender proceeding.

Slaughter, J., joins in part.

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 15 of 15
Slaughter, J., dissenting.

I join the Chief Justice’s separate opinion in part and agree with her
proposed disposition for Defendant, Christopher Jerome Harris. But,
unlike the Chief Justice, I do not join Part I of Justice Goff’s lead opinion
for the Court. While I largely agree with his constitutional analysis in Part
I, under principles of constitutional avoidance, I do not support
addressing constitutional questions in a case decided on other, non-
constitutional grounds. I write separately here to note a couple thoughts
about how (or whether) article 1, section 19 of our state constitution may
apply in a future case.

First, by its terms, article 1, section 19 applies in “all criminal cases
whatever”. This provision does not limit its application to sentencing
proceedings but also presumably applies to a criminal case’s guilt phase.

Second, a criminal jury has the “right to determine the law and the
facts” under article 1, section 19. Relevant here, our legislature has
entrusted such juries with determining a criminal defendant’s status as a
habitual offender. Ind. Code § 35-50-2-8(h). The assignment of that
responsibility to juries means article 1, section 19 applies here. In my view,
the legislature could withdraw that determination from the jury without
running afoul of section 19. One option would be for the trial court alone
to make that determination based on the historical fact that the defendant
was convicted of two prior unrelated felonies. See Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (fact of prior convictions need not be submitted to
jury and proved beyond a reasonable doubt).

Neither of these two issues is before the Court today. But in a future
case, I am willing to consider applying article 1, section 19 outside the
habitual-offender context. I am also open to limiting this provision’s
application if the legislature elects to remove juries from the habitual-
offender determination.

Indiana Supreme Court | Case No. 23S-CR-165 | June 29, 2023 Page 1 of 1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9897213. Public record. Not legal advice.