Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN C. BOHDAN GREGORY F. ZOELLER

Fort Wayne, Indiana Attorney General of Indiana

JUSTIN F. ROEBEL

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMARCUS CAIN, )

)

Appellant-Defendant, )

)

vs. ) No. 02A03-1207-CR-335

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Frances C. Gull, Judge 

Cause No. 02D06-1111-FC-375 

March 28, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
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STATEMENT OF THE CASE

Jamarcus Cain (“Cain”) appeals his conviction for Class C felony carrying a 

handgun without a license.1 Cain alleges that the trial court committed reversible error 

by giving the jury an additional instruction without rereading all of the final instructions 

once deliberations began.

We affirm.

ISSUE

Whether the trial court erred by giving the jury an additional instruction 

without rereading all of the final instructions once deliberations began.

FACTS

On the evening of November 18, 2011, Cain drove a car into a tree after he had 

been drinking at a friend’s house. Michael Davis (“Davis”) heard the crash and saw Cain 

running from the scene. Davis called the police and gave a description of the clothes

Cain was wearing. Officer Jason Anthony (“Officer Anthony”) of the Fort Wayne Police 

Department responded to the call and observed Cain run in front of his vehicle a short 

time later. Officer Anthony exited his vehicle and ordered Cain to stop. Cain stopped 

running but continued walking toward a car in a nearby driveway. Officer Anthony then 

observed Cain “[throw] something underneath the car.” (Tr. at 46). Officer Anthony 

could not see what Cain threw but “immediately heard what sounded like metal hitting 

concrete” after Cain made the “throwing motion.” (Tr. 47-9). Cain then attempted to 

hide between the car and an adjacent garage. Cain eventually surrendered to Officer 

 

1

Ind. Code §§ 35-47-2-1, 35-47-2-23.
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Anthony. Other officers subsequently discovered a handgun underneath the car where 

Officer Anthony saw Cain. No other metal items were found underneath the car.

On November 28, 2011, the State charged Cain with carrying a handgun without a 

license as a Class C felony.2 A jury trial was held on May 31, 2012. Closing arguments 

for both parties focused on whether Cain had been in constructive possession of the 

handgun. After those arguments, the trial court read the jury its final instructions. Jurors 

were given a copy of the final instructions to take with them into the jury room. A little 

over an hour into deliberations, the jurors asked for a definition of constructive 

possession. After conferring with the lawyers, and reviewing Indiana Jury Rule 28 along 

with the case of Ticher v. Davidson, 762 N.E.2d 1221 (Ind. 2002), the trial court realized 

that it failed to give any instruction on possession. To remedy the omission, the trial 

court decided it would give the jurors Indiana Pattern Jury instruction number 14.156 

defining possession, while redacting portions dealing with sole and joint possession. The 

trial court proposed to read the instruction to the jury and ordered that they reread all of 

the instructions, cautioning them not to place any greater emphasis on the additional

instruction. Cain objected only to the trial court’s procedure of not rereading all of the 

 

2

 The State also charged and convicted Cain of operating a vehicle with an alcohol concentration 

equivalent to .15 or more, operating a vehicle while intoxicated, and driving while suspended as Class A 

misdemeanors. Cain was also charged and convicted of failure to stop after accident as a Class B 

misdemeanor. However, Cain did not appeal his convictions on these charges.
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final instructions. The trial court proceeded with its proposed method of instructing the 

jury; they subsequently returned a verdict of guilty on all charges.3

DECISION

Generally, the manner of instructing a jury lies within the sound discretion of the 

trial court. Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct. App. 2002), trans. denied. A 

trial court’s decision on the submission of jury instructions is reversible upon a showing 

of an abuse of discretion. Id. A defendant is only entitled to a reversal if he affirmatively 

demonstrates that the instructional error prejudiced his substantial rights. Hollowell v. 

State, 707 N.E.2d 1014, 1023 (Ind. Ct. App. 1999).

As a general rule, once jury deliberations commence, the trial court should not 

give any additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind 1982).

“This rule precludes the trial court from giving any special emphasis, inadvertent or 

otherwise, to a particular issue in the case, and thus avoids the possibility that the 

additional instruction(s) may tell the jury what it ought to do concerning that issue.” Id. 

Our Supreme Court has recognized a narrow exception to this rule:

When confronted with a question from a jury which has commence 

deliberations, the challenge to the trial judge is to respond in a manner 

which accords with the legal requirements for final instructions and which 

is fair. The path is extremely hazardous for the court that would depart 

from the body of the final instructions and do other than reread the final 

instructions.... Such a departure will be warranted in only the most 

extreme circumstances. It must serve to amend the final instructions by 

adding a necessary one previously omitted or correcting an erroneous one, 

 

3

In a bifurcated proceeding, the State presented evidence that Cain had been convicted of a felony within 

fifteen (15) years of November 18, 2011 to satisfy part II of the charging information for the handgun. 

The jury found Cain guilty of this part of the charge as well, hence the conviction for a Class C felony.
5

and must be fair to the parties in the sense that it should not reflect the 

judge’s view of factual matters. Thus, it is only when the jury question 

coincides with an error or legal lacuna in the final instructions that a 

response other than rereading from the body of final instructions is 

permissible.

Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981) (citations omitted). 

Here, Cain argues that the trial court erred in not rereading all of the final 

instructions along with the omitted instruction regarding possession. Cain relies on our 

Court’s decision in Graves v. State, 714 N.E.2d 724. (defendant’s conviction reversed 

where the trial court gave an additional instruction after deliberations had begun without 

rereading all of the final instructions). This Court also recently decided a case similar to 

Graves in Dowell v. State, 973 N.E.2d 58 (Ind. Ct. App. 2012). Dowell, along with his 

codefendant, planned to rob a man they encountered at a bar who was drunk and carrying 

a large amount of cash. They lured the victim to an agreed upon location, where Dowell 

hit the victim with a baseball bat, the accomplice took the victim’s money. At trial, the 

jury was instructed about the elements of robbery, but not accomplice liability. During 

deliberations, the jury essentially asked if Dowell could be convicted under the law of 

accomplice liability. The trial court responded by sending a note to the jury stating 

“Indiana law provides that a person who aids another person to commit an offense 

commits that offense.” Id. at 59. The trial court did not bring the jury back into the 

courtroom or reread all of the instructions. We found that this was a reversible error 

because the additional instruction caused the type of impermissible emphasis that 

Crowdus aims to prevent. We distinguish Cain’s case from Graves and Dowell.
6

First, contrary to Cain’s assertion, the trial court in his case did not read the 

instruction in isolation as in Graves or Dowell. The trial court read the additional 

instruction and admonished the jury as follows:

Thank you Ronell. Ladies and gentlemen I’m not sure who the Foreman is 

and it’s not important at this particular juncture or time but somebody on 

the jury has asked the question about what is constructive possession. That 

note was provided to myself. I have discussed with counsel. You have 

asked a specific question of law. Our jury rules permit the trial courts to 

answer your specific question of law and provide to you an omitted 

instruction. I will provide to you a copy of the omitted instruction, I will 

read it to you and also ask and direct and order that you re-read[sic] all of 

the instructions that I’ve provided. Don’t give any specific emphasis to this 

instruction over any of the other instructions but consistent with the status 

of the law the court would instruct you that the word possess means to own 

or to exert control over. The word possession can take on several different 

but related meanings. There are two kinds of possession, actual and 

constructive possession. A person who knowingly has direct physical 

control of a thing at a given time is then in actual possession of it. A person 

who, although not in actual possession , knowingly has both the power and 

the intention at a given time to exercise control over a thing is then in 

constructive possession of it. Possession may be actual or constructive. 

I will provide to Ronell, there’s twelve copies. Please put these in your 

packets. Again direct and order that you re-read[sic] all of the instructions, 

place that in an appropriate place and don’t give it any extra emphasis or 

anything over and above any of the other instructions that I’ve provided. 

And Ronell you may take the jury to continue deliberations. 

(Tr. 157-58).

Indeed, there was an omission in instructing the jury on the definition of possession. Our 

Supreme Court’s decisions in Crowdus and Jenkins permitted the trial court to deviate 

from rereading all of the final instructions. See Crowdus, 431 N.E.2d at 798; Jenkins, 

424 N.E.2d at 1003. Hence, the ultimate question in our review is whether the trial 

court’s deviation was fair to the parties. 
7

In response to the jury’s question, the trial court read Indiana Pattern Instruction 

number 14.156 defining possession. The trial court also admonished the jury several 

times to reread all of the instructions and not to give it more weight than any of the other 

instructions given. Finally, the instruction did not emphasize one issue over another. In 

fact, possession was the only contested issue. During the trial, Cain admitted that he had 

been drinking that evening, that he crashed the car into a tree, and that he fled the scene

of the accident. Both lawyers focused on the possession of the handgun in their closing 

arguments, essentially conceding Cain’s guilt of the other offenses. Given the trial 

court’s use of the pattern instruction, the thorough admonishment to the jury, and the 

resolution of the case depending on one issue, we find that the trial court’s actions in this 

case were fair to both parties.

4

Affirmed.

ROBB, C.J., and MAY, J., concur.

 

4

 Although we find no error with the trial court’s procedure in this case, we stress that the best practice in 

similar situations is to add any omitted instructions in their appropriate place and reread all final 

instructions to the jury.