Court of Appeals of Indiana | Memorandum Decision 20A03

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### 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.

A TTORNEY FOR A PPELLANT Peter D. Todd Elkhart, Indiana A TTORNEY S FOR A PPELLEE 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 1 9 , 2016 Court of Appeals Ca se No. 20A03

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- 1282 Appeal from the Elkhart Superior Court The Honorable Evan S. Roberts, Judge Trial Co urt Cause No. 20D01

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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 ofCourt of Appeals of Indiana | Memorandum Decision 20A03

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age 1 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 ch ildren. He punched G irlfriend 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 under neath 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, t he State charged him with one count of Class D felony domestic battery and one count of Class D felony theft.

[4] A j ury trial was conducted. The record before us reflect s 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, a s is relevant here, stated:

The Court has g ranted the defendant’s request, without objection, as to provid i ng the jury necessar y lesser included

1 See Ind. Code § 35

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- 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. Cod e § 35

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offenses of Domestic Battery, as a Class A Misdemeanor; Battery, as a Class A M isdemeanor; 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] T he referenced verdict form instruction pr ovided 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 l esse r included offenses as contained in the Verdict Form. By way of example only, if you fin d 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). Crock et t ’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

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. The trial court overruled the objection and later read the inst ruction to the jury. Id . at 408

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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 co nviction , 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 . In itially, we observe that , aside from the standard of review and reciting the instruction at issue, Crockett’s argument consists of two

sen tences, 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 R ecord 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, Crocket t has waived this issue for appellate review.

[8] Waiver not withstanding, 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

. T he manner of instructing the jury lies within the trial court ’ s sound discretion. Id. Jury instructions willCourt of Appeals of Indiana | Memorandum Decision 20A03

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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. I d.
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 wo rd “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

. W e believe that Crockett’s argument is tha t 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 , 7 30 N.E.2d 713, 716 (Ind. 2000) , our Supreme C ourt 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 be yond 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 possibilityCourt of Appeals of Indiana | Memorandum Decision 20A03

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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 sati sfied 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 C ourt held that Instructions 15 and 21 , w hich “inform[ed] the jurors that if they conclude beyond a reasonable doubt that the defendant is guilty, they should return a verdict of guilty,” d id not violate Arti cle I, S ection 19

. Id

. The Court further opined, “ T he 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). S o long as the jury i s instructed on the e lements of the crime, that it i s judge of the law and the facts, and that it i s 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, t he trial court instructed the jurors that they had the right to determine both the law and the fact s
. Tr. at 394; Appellant’s App . at 32 , 56 . It also instructed the jury as to the elements of the offenses, that all instructions mustCourt of Appeals of Indiana | Memorandum Decision 20A03

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be considered togethe r , 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 chal lenged 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. Sta te , 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 Art icle I , S ection 19 of
In diana Constitution) , trans. denied

.

[12] Affirmed

.

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