Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1282 | April 19, 2016 Page 1 of 7

MEMORANDUM DECISION

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

Peter D. Todd

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Darius L. Crockett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 19, 2016

Court of Appeals Case No.

20A03-1509-CR-1282

Appeal from the

Elkhart Superior Court

The Honorable

Evan S. Roberts, Judge

Trial Court Cause No.

20D01-1406-FD-693

Kirsch, Judge.

[1] Following a jury trial, Darius L. Crockett (“Crockett”) was convicted of Class 

D felony domestic battery in the presence of a child less than sixteen years of 
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age1 and Class D felony theft.2 He appeals and raises the following restated 

issue: whether the trial court properly instructed the jury. 

[2] We affirm. 

Facts and Procedural History

[3] In November 2013, Crockett was living with his then-girlfriend (“Girlfriend”) 

and her two young children. He punched Girlfriend in the face in the presence 

of her children, and he shoved her to the ground and pinned her there, with her 

one-year-old child underneath her. Crockett thereafter threatened Girlfriend

with a steak knife, and before leaving the premises, he took Girlfriend’s keys 

and cell phone from her. In June 2014, the State charged him with one count of 

Class D felony domestic battery and one count of Class D felony theft. 

[4] A jury trial was conducted. The record before us reflects that, on the morning 

of the second day of trial, counsel for both parties met with the trial court in 

chambers “to begin work on the final instructions.” Tr. at 300. Once back on 

the record, the trial court summarized what had transpired and, as is relevant 

here, stated:

The Court has granted the defendant’s request, without 

objection, as to providing the jury necessary lesser included 

 

1

See Ind. Code § 35-42-2-1.3(a)(2), (b)(2). We note that the statutes under which Crockett was charged were 

amended effective July 1, 2014. However, he committed his offenses in November 2013, and we apply the 

statutes in effect at that time. 

2

See Ind. Code § 35-43-4-2(a).
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offenses of Domestic Battery, as a Class A Misdemeanor; 

Battery, as a Class A Misdemeanor; Battery, as a Class B 

Misdemeanor; and Criminal Conversion, as a Class A 

Misdemeanor. In addition, the Court has modified the final 

instructions to avoid confusing the jury with reference to the verdict 

form[.]

Id. at 301 (emphasis added). 

[5] The referenced verdict form instruction provided the following explanation to 

the jury about how to complete the verdict form:

I am submitting to you a Verdict Form you may return. The 

foreperson should sign and date the verdict to which you all 

agree. Do not sign any form for which there is not unanimous 

agreement. The foreperson must return the verdict form, signed 

or unsigned. You must address all counts and lesser included 

offenses as contained in the Verdict Form. By way of example 

only, if you find that the State of Indiana has met its burden of 

proof (that is, beyond a reasonable doubt) as to the Class D 

Felony of Domestic Battery, you should mark that Count Guilty; 

or, if you find that the State of Indiana has not met its burden of 

proof (that is, beyond a reasonable doubt) as to the Class D 

Felony of Domestic Battery, you should mark that Count, Not 

Guilty.

Appellant’s App. at 49; Tr. at 302 (emphasis added). Crockett’s counsel lodged 

an objection to the instruction as written and asked that the instruction use the 

language “may” return a verdict of guilty instead of “should,” arguing that “it’s 

more in line with the jury’s role as judges of the facts and the law[.]” Tr. at 301-

02. The trial court overruled the objection and later read the instruction to the 

jury. Id. at 408-09. 
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[6] The jury found Crockett guilty as charged, and the trial court sentenced him to 

three years of incarceration for the Class D felony domestic battery conviction

and one year for the Class D felony theft conviction, to be served consecutively. 

He now appeals.

Discussion and Decision

[7] Crockett claims it was error to instruct the jury that, if it determined that the 

State had met its burden of proof on a charged offense, then it “should” mark 

that count as guilty. Initially, we observe that, aside from the standard of 

review and reciting the instruction at issue, Crockett’s argument consists of two 

sentences, and he cites to no case law in support of his argument. Appellant’s Br. 

at 2. Indiana Appellate Rule 46(A)(8) provides in relevant part, “The argument 

must contain the contentions of the appellant on the issues presented supported 

by cogent reasoning. Each contention must be supported by citations to the 

authorities, statutes, and the Appendix or parts of the Record on Appeal relied 

on.” A party waives an issue where the party fails to develop a cogent 

argument or provide adequate citation to authority and portions of the record. 

Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005). Accordingly, 

Crockett has waived this issue for appellate review.

[8] Waiver notwithstanding, we find no error. In reviewing challenges to jury 

instructions, we afford great deference to the trial court. R.T. v. State, 848 

N.E.2d 326, 331 (Ind. Ct. App. 2006), trans. denied. The manner of instructing 

the jury lies within the trial court’s sound discretion. Id. Jury instructions will 
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be considered as a whole and not individually, and a court does not necessarily 

abuse its discretion by giving an erroneous instruction. Womack v. State, 738 

N.E.2d 320, 325 (Ind. Ct. App. 2000), trans. denied. To find that the court 

abused its discretion by giving an erroneous instruction, we must find that the 

instructions taken as a whole misstate the law or otherwise mislead the jury. Id. 

A defendant is only entitled to a reversal if he affirmatively demonstrates that 

the instructional error prejudiced his substantial rights. Snell v. State, 866 

N.E.2d 392, 396 (Ind. Ct. App. 2007). 

[9] Crockett argues that the use of the word “should” in the instruction – i.e., “if 

you find ... then you should” – was erroneous. He suggests that the phrase 

“may return a verdict” of guilty or not guilty “more properly states the role of 

the jury.” Appellant’s Br. at 2. We believe that Crockett’s argument is that the 

instruction impermissibly impinged upon the jury’s role under Article I, section 

19 of the Indiana Constitution, which states: “In all criminal cases whatever, 

the jury shall have the right to determine the law and the facts.” In Wright v. 

State, 730 N.E.2d 713, 716 (Ind. 2000), our Supreme Court considered and 

rejected a defendant’s challenge to similar instructions, which read:

Instruction 15

The State has the burden of proving that the defendant is guilty 

beyond a reasonable doubt. . . . Proof beyond a reasonable doubt 

is proof that leaves you firmly convinced of the defendant’s guilt.

. . . If, based on your consideration of the evidence, you are firmly 

convinced that the defendant is guilty of the crime charged, you should 

find him guilty. If on the other hand, you think there is a real possibility 
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that he is not guilty, you should give him the benefit of the doubt and 

find him not guilty.

Instruction 21

I submit this case to you with the confidence that you will 

faithfully discharge the grave duty resting upon you, bearing in 

mind that the liberty of the accused is not to be trifled away nor 

taken by careless or inconsiderate judgment; but if after a careful 

consideration of the law and the evidence in the case you are satisfied 

beyond a reasonable doubt that the defendant is guilty, you should return 

your verdict accordingly. Duty demands it and the law requires it.

Id. at 716 (record citations omitted) (emphasis added).

[10] The Wright Court held that Instructions 15 and 21, which “inform[ed] the jurors 

that if they conclude beyond a reasonable doubt that the defendant is guilty, 

they should return a verdict of guilty,” did not violate Article I, Section 19. Id.

The Court further opined, “The instructions are hardly offensive to any of our 

fundamental precepts of criminal justice[.]” Id.; see also Morgan v. State, 755 

N.E.2d 1070, 1073 (Ind. 2001) (recognizing that trial court’s use of word 

“should” in instruction does not violate Article I, Section 19). So long as the 

jury is instructed on the elements of the crime, that it is judge of the law and the 

facts, and that it is to consider all the instructions as they relate to each other, 

“[I]t is proper to tell the jury it ‘should’ convict.” Wright, 730 N.E.2d at 716.

[11] Here, the trial court instructed the jurors that they had the right to determine 

both the law and the facts. Tr. at 394; Appellant’s App. at 32, 56. It also 

instructed the jury as to the elements of the offenses, that all instructions must 
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be considered together, that Crockett was entitled to the presumption of 

innocence, and that the State had the burden of proof beyond a reasonable

doubt. Tr. at 394, 399-401; Appellant’s App. at 32, 34, 39, 58, 62. Taking the 

instructions as a whole, the language of the challenged instruction did not 

invade the province of the jury or require it to follow a certain course of action. 

Crockett has failed to demonstrate that the trial court abused its discretion in 

the manner in which it instructed the jury. See Burgett v. State, 758 N.E.2d 571, 

577 (Ind. Ct. App. 2001) (rejecting defendant’s argument that phrase “you 

should find him guilty” is mandatory and invades province of jury, as jury still 

had right “to determine law and facts” as required by Article I, Section 19 of 

Indiana Constitution), trans. denied.

[12] Affirmed.

[13] Mathias, J., and Brown, J., concur.