Court of Appeals of Indiana | Opinion 18A

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A TTORNEY FOR A PPELLANT Matthew D. Anglemeyer Marion County Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Roberto Cruz Rivera , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff June 26, 2019 Court of Appeals Ca se No. 18A

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- 2862 Appeal from the Marion Superior Court The Honorable Helen Marchal, Judge Trial Court Cause No. 49 G15

- 1708

- F6

- 30973

Vaidik, Chief Judge
. 

# Case Summary

[1] Under Indiana Code section 35

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- 4(a), a trial court is required to give the jury an admonishment limiting juror discussions of the case (1) “ in the preliminary instruction, ” (2) “ before separating for meals, ” and (3) “ at the endCourt of Appeals of Indiana | Opinion 18A

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of the day

. ” In this case, the trial court read the preliminary instructions

— including the required admonishment

— and then immediately excused the jury
f or lunch without repeating the admonishment. We must decide whether the giving of the admonishment as part of the preliminary instructions was sufficient to satisfy not only the “in the preliminary instruction” requirement of the statute but also the “bef ore separating for meals” requirement. Because the jury was sent to lunch immediately after hearing the preliminary instructions, we hold that it was.



# Facts and Procedural History

[2] I n August 2017, the State charged Rivera with Level 6 felony auto theft an d Class A misdemeanor theft. A jury trial was held on June 13, 2018. T he judge swore in the jurors at 12:09 p.m. and then read sixteen preliminary instructions

. Preliminary Instruction 1, which tracks Indiana Pattern Jury Instructions

— Criminal 1.0100 (4 th ed. 2019) ( en titled “Duty of Jurors” ) , p rovide d , in relevant part:
You are permitted to discuss the evidence among yourselves in

the jury room during recesses from trial but only when all jurors and alternates are present. You must not talk or communicate about this case with anyone else. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations.
Appel lant’s App. Vol. II p. 82

. The judge also gave Preliminary Instr uction 3 , which directed the jury “to consider all the instructions together , ” id. at 85 , a ndCourt of Appeals of Indiana | Opinion 18A

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P reliminary Instruction 12 , which instructed the jury on the credibility of witnesses and the man ner of weighing testimony , i d . at 94.

[3] At 12:23 p.m., immediately after reading the preliminary instructions, the judge excused the jury for lunch. Tr. p. 23. The judge did not repeat the admonishment limiting juror discussions of the case , and Rivera did not ask for it to be repeated

. After the jury returned from lunch , counsel gave opening statements and presented evidence . Counsel then reviewed and approved final instructions , which were read to the jury

. The judge did not instruct the jury on the credibility of witnesses and the manner of weighing testimony ; however, Final Instruction 1 specifically directed the jury “to consider all of the jury instructions (both preliminary and final) together

. ” Appellant’s App. Vol. II p. 101

. T he jury found Rivera guilty of auto theft but not guilty of theft.

[4] Rivera now appeals.



# Discussion and Decision

[5] Rivera contends that the trial court should have (1) repeated its admonishment limiting juror discussions of the case before excus ing the jury for lunch and (2) included final instructions about the credibility of witnesses and the manner of weighing testimony

. Rivera concedes that he waived both issues by failing to raise them in the trial court and that he must therefore establish fundamental error on appeal. The doctrine of f undamental error is an extremely narrow exception to the waiver rule that requires the defendant to show that the alleged error was soCourt of Appeals of Indiana | Opinion 18A

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prejudicial to hi s rights as to make a fair trial impossible. Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014), reh ’ g denied

. 

## I. Admonishment

[6] Rivera first contends that the trial court committed fundamental error by not repeating its admonishment limiting juror discussions of the case before excus ing the jury for lunch . Indiana Code section 35

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- 4(a) provides :

T he court shall admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day, that it is their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.

Rivera “ acknowledges the substance of the admonishment was covered in Preliminary Instruction 1 , ” which had been given less than fift een minutes earlier, but asserts that the judge was required to give it a second time before excusing the jury for lunch. 1 Appellant’s Br. p. 11. The State responds that because the jury was excused for lunch immediately after the preliminary

1 The admonishment envisioned by Section 35

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- 4(a) was not technically “covered” by Preliminary Instruction 1. As noted above, Preliminary Instruction 1 was based on Indiana Criminal Pattern Jury Instructio n 1.0100 , which in turn is largely based on Indiana Jury Rule 20(a)(8)

. Jury Rule 20(a)(8) requires judges to give jurors a preliminary instruction that the y are “ permitted to discuss the evidence among themselves in the jury room during recesse s from trial when all are present , as long as they reserve judgment about the outcome of the case until deliberations commence .” (Emphasis added). Section 35

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- 4(a) , on the other hand, requires judges to admonish jurors “ not to converse among themselv es

. . . on any subject connected with the trial . . . until the cause is finally submitted to them. ” (Emphasis added). As such , it would have been impossible for the judge to give an admonishment that completely satisfied both Jury Rule 20 (a) (8) and Section 35

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- 4(a) . In any event, Rivera makes no issue of the conflict between the rule and the statute , and the tension between the two provisions does not affect our analysis in this case.Court of Appeals of Indiana | Opinion 18A

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instruction s were given, the “ in the prelim in ary instruction” and “before separating for meals” requirements of Section 35

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- 4(a) were both satisfied by the single admonishment

. In other words, the State contends that the judge effectively killed two birds with one stone.

[7] We agree with the State. Section 35

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- 4(a) requires judges to admonish jur ies at three different times: (1) during preliminary instructions; (2) before separating for meals; and (3) at the end of the day

. Here, two of those times happened to coincide. After t he jur y w as sworn in at 12:09 p.m., the judge read the preliminary instructions, one of which admonished the jury not to discuss the case unless all the jurors we re together in the jury room , not to discuss the case with anyone else , and not to form or express any conclusion s until the case wa s submitted to it

. The judge excused the jury for lunch at 12:23 p.m. Although the judge was free to repeat the admonishment at that time , there was no need to do so given that she had just re ad the preliminary instructions to the jury

. W here, as here, there are no intervening proceedings between the reading of the preliminary instructions and the jury being excused for lunch, trial courts are not required to give the ad monishment required by Section 35

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- 4(a) a second time

. Accordingly, the judge did not err.



## II. Incomplete Final Jury Instructions

[8] Next, Rivera contends that the trial court should have given fi nal instructions on the credibility of witnesses and the manner of weighing testimony

. He is correct. Indiana Jury Rule 26(a) provides, in relevant part, that “the court shall readCourt of Appeals of Indiana | Opinion 18A

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appropriate final instructions, which shall include at least the following: (1) the applicable burdens of proof; (2) the credibility of witn esses; and, (3) the manner of weighing the testimony received.” While t he judge instructed the jury on the burden of proof during final instructions , see Appellant’s App. Vol. II p. 104, she did not instruct it on the credibility of witnesses and the mann er of weighing testimony.

[9] That said, because Rivera did not raise this issue below, he bears the heavy burden on appeal of est ablishing fundamental error. He has failed to do so. When considering whether an instruction al error amounts to fundamental er ror, we consider the instructions as a whole and in reference to each other. Pattison v. State , 54 N.E.3d 361, 365 (Ind. 2016). During preliminary instructions, the judge instructed the jury on the credibility of witness es and the manner of weighing testimony. See Appellant’s App. Vol. II. p. 94 (Preliminary Instruction 12)

. In addition, Preliminary Instruction 3 directed the jury “to consider all the instructions together,” and Final Instruction 1 directed the jury “to c onsider all of the jury instructions (both preliminary and final) together.” Id . at 85, 101. The trial lasted one day, so in the same day that the jury decided the case, it heard instruction s regarding the credibility of witnesses and the manner of weig hing testimony. T he trial court did not commit fundamental error

. 2

2 Rivera also argues that “[e]ven if this Court finds neither error standing alone warrants reversal in this case, the cumulative effect of the combined errors does.” Appellant’s Br. p. 13. However, because we find that the trial court did not err by not admonishing the jury a second time before lunch, there were no t “ combined
errors , ” so Rivera’s argument necessarily fails.Court of Appeals of Indiana | Opinion 18A

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[10] Affirmed.

Kirsch, J., and Altice, J., concur

.