Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020 Page 1 of 12

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

Frederick Vaiana

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

F. Aaron Negangard

Chief Deputy Attorney General

Benjamin J. Shoptaw 

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony Dwayne Jones,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 23, 2020

Court of Appeals Case No.

19A-CR-2526

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

Trial Court Cause No.

49G01-1705-F1-19420

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2526 | July 23, 2020 Page 2 of 12

Case Summary

[1] Anthony Jones appeals his convictions for attempted rape, a Level 1 felony; 

robbery resulting in serious bodily injury, a Level 2 felony; battery, a Class B 

misdemeanor; and criminal confinement, a Level 5 felony. We affirm.

Issue

[2] Jones raises one issue, which we restate as whether the trial court committed 

fundamental error in instructing the jury.

Facts

[3] As a result of a series of attacks on women in Indianapolis on May 22, 2017, 

and May 26, 2017, the State charged Jones with: (1) rape, a Level 1 felony; (2) 

robbery resulting in serious bodily injury, a Level 2 felony; (3) criminal 

confinement, a Level 3 felony; (4) kidnapping, a Level 3 felony; (5) sexual 

battery, a Level 4 felony; (6) battery resulting in serious bodily injury, a Level 5 

felony; (7) intimidation, a Level 6 felony; (8) strangulation, a Level 6 felony; (9) 

battery resulting in bodily injury, a Class A misdemeanor; (10) battery, a Class 

B misdemeanor; (11) battery, a Class B misdemeanor; (12) battery, a Class B 

misdemeanor; (13) confinement, a Level 5 felony; (14) intimidation, a Level 6 

felony; (15) strangulation, a level 6 felony; and (16) battery resulting in 

moderate bodily injury, a Level 6 felony. 

[4] At Jones’s September 2019 jury trial, the trial court gave the jury preliminary 

instructions that defined each charge; listed the elements of each charge; and for 

each charge, informed the jury that it must find Jones not guilty “if the State 
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failed to prove each of these elements beyond a reasonable doubt.” See Tr. Vol. 

II pp. 134-143; Appellant’s App. Vol. II pp. 176-191. The trial court also gave 

the following preliminary instructions, which were based on the pattern jury 

instructions, to the jury:

Instruction Number 15. The burden is upon the State to prove 

beyond a reasonable doubt that the Defendant is guilty of the 

crimes charged. It is a strict and heavy burden. The evidence 

must overcome any reasonable doubt concerning the Defendant’s 

guilt, but it does not mean that a Defendant’s guilt must be 

proved beyond all possible doubt. 

A reasonable doubt is a fair, actual, and logical doubt based upon 

reason and common sense. A reasonable doubt may arise either 

from the evidence or from the -- a lack of evidence. Reasonable 

doubt exists when you are not firmly convinced of the 

Defendant’s guilt after you have weighed and considered all the 

evidence.

A Defendant must not be convicted on suspicion or speculation. 

It is not enough for the State to show that the Defendant is 

probably guilty. On the other hand, there are very few things in 

the world that we know with absolute certainty. The State does 

not have to overcome every possible doubt. 

The State must prove each element of the crime by evidence that 

firmly convinces each of you and leaves no reasonable doubt. 

The proof must be so convincing that you can rely and act upon 

it in this matter of the highest importance.

If you find that there is a reasonable doubt that the Defendant is 

guilty of the crimes, you must give the Defendant the benefit of 
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the doubt and find the Defendant not guilty of the crimes under 

consideration. 

Instruction Number 16. Under the law of this State, a person 

charged with a crime is presumed to be innocent. This 

presumption of innocence continues in favor of the Defendant 

throughout each stage of the trial and you should fit the evidence 

presented to the presumption that the Defendant is innocent, if 

you can reasonably do so.

If the evidence lends itself to two reasonable interpretations, you 

must choose the interpretation that’s consistent with the 

Defendant’s innocence. If there is only one reasonable 

interpretation, you must accept that interpretation and consider 

the evidence with all the other evidence in the case in making 

your decision. 

To overcome the presumption of innocence, the State must prove 

the Defendant guilty of each element of the crimes charged 

beyond a reasonable doubt. 

The Defendant is not required to present any evidence to prove 

his innocence or to prove or explain anything.

Tr. Vol. II pp. 144-46; Appellant’s App. Vol. II pp. 203-205.

[5] After the close of evidence, the trial court gave the following final instructions:

Instruction 1. . . . The court must point out in the instructions as 

heretofore instructed you as to reach these [sic] from trial, the 

burden of proof, the credibility of witnesses and the manner of 

weighing the evidence received which preliminary instructions 

should be considered by you along with the following final instructions 

[in] arriving at your verdict in this case. As to these instructions on 
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the law read to you by the Court in which you will be allowed to 

take to the jury room with you, it is impractical to embody all 

applicable law in only one instruction, so in considering one 

instruction, you should construe it in connection with and in light of 

every other instruction given.

* * * * *

Instruction number [8.] [U]nder the law of this state, a person 

charged with a crime is presumed to be innocent. This 

presumption of innocence continues in favor of the defendant 

throughout each stage of the trial and you should fit the evidence 

presented to the presumption that the defendant is innocent if 

you can reasonably do so. To overcome the presumption of 

innocence, the State must prove the defendant guilty of each 

element of the crime charged beyond a reasonable doubt. The 

defendant is not required to present any evidence to prove his 

innocence or to prove or explain anything.

Tr. Vol. III pp. 206, 208 (emphasis added); Appellant’s App. Vol. II pp. 216-

217, 225.

[6] The trial court also instructed the jury that, if the State failed to prove rape as 

charged in Count I, it could consider whether the State proved the lesserincluded offense of attempted rape. The trial court then defined attempted rape 

and noted that the State was required to prove the elements “beyond a 

reasonable doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20.

[7] The jury found Jones guilty on all counts, except it found Jones not guilty of 

kidnapping and it found Jones guilty of attempted rape, a Level 1 felony, rather 

than rape. Due to double jeopardy concerns, the trial court entered the 
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following convictions: attempted rape, a Level 1 felony; robbery, a Level 5

felony; battery, a Class B misdemeanor; and criminal confinement, a Level 5 

felony. The trial court sentenced Jones to an aggregate sentence of thirty-eight 

and one-half years in the Department of Correction. Jones now appeals.

Analysis

[8] Jones argues that the trial court committed fundamental error in instructing the 

jury. Because instructing the jury is a matter within the sound discretion of the 

trial court, we will reverse a trial court’s decision regarding jury instructions

only if there is an abuse of that discretion. Pattison v. State, 54 N.E.3d 361, 365 

(Ind. 2016). An abuse of discretion occurs only if the decision is clearly against 

the logic and effect of the facts and circumstances before the court, or the 

reasonable, probable, and actual deductions to be drawn therefrom. Schuler v. 

State, 132 N.E.3d 903, 904 (Ind. 2019).

[9] We determine whether the instruction states the law correctly, whether it is 

supported by evidence in the record, and whether its substance is covered by 

other instructions. Pattison, 54 N.E.3d at 365. “Jury instructions are to be 

considered as a whole and in reference to each other; error in a particular 

instruction will not result in reversal unless the entire jury charge misleads the 

jury as to the law in the case.” Id.

[10] Where, as here, the defendant failed to object to the alleged instructional defect, 

reversal is warranted only in instances of fundamental error. Id. “Error is 

fundamental if it is ‘a substantial blatant violation of basic principles’ and 
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where, if not corrected, it would deny a defendant fundamental due process.” 

Id. This exception to the general rule requiring a contemporaneous objection is 

narrow, providing relief only in “egregious circumstances” that made a fair trial 

impossible. Id.

[11] Jones appears to make two arguments regarding the instructions given by the 

trial court: (1) the trial court failed to instruct the jury regarding the meaning of 

“beyond a reasonable doubt” in its final instructions; and (2) except for Count I, 

the trial court failed to advise the jury of the requisite burden of proof in the 

final instructions. Jones acknowledges, however, that he did not object to the

instructions.1

1 Indiana Trial Rule 51 requires a party to state objections to instructions and provides, in relevant part:

(A) Preliminary Instructions. When the jury has been sworn the court shall instruct the jury in 

accordance with Jury Rule 20. Each party shall have reasonable opportunity to examine these 

preliminary instructions and state his specific objections thereto out of the presence of the jury 

and before any party has stated his case. (The court may of its own motion and, if requested by 

either party, shall reread to the jury all or any part of such preliminary instructions along with 

the other instructions given to the jury at the close of the case. A request to reread any 

preliminary instruction does not count against the ten [10] instructions provided in subsection 

(D) below.) The parties shall be given reasonable opportunity to submit requested instructions 

prior to the swearing of the jury, and object to instructions requested or proposed to be given.

(B) Final Instructions. The judge shall instruct the jury as to the law upon the issues presented 

by the evidence in accordance with Jury Rule 26.

(C) Objections and Requested Instructions Before Submission. At the close of the evidence and

before argument each party may file written requests that the court instruct the jury on the law 

as set forth in the requests. The court shall inform counsel of its proposed action upon the 

requests prior to their arguments to the jury. No party may claim as error the giving of an 

instruction unless he objects thereto before the jury retires to consider its verdict, stating 

distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be 

given to make the objection out of the hearing of the jury. The court shall note all instructions 

given, refused or tendered, and all written objections submitted thereto, shall be filed in open 

court and become a part of the record. Objections made orally shall be taken by the reporter 

and thereby shall become a part of the record.
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I. Reasonable Doubt

[12] Jones contends the trial court should have instructed the jury in the final 

instructions regarding the definition of “beyond a reasonable doubt.” In 

Preliminary Instruction 15 and 16, the trial court specifically defined the burden 

of proof.

2 The trial court did not repeat these instructions regarding the burden 

of proof in its final instructions;

3 the trial court did, however, inform the jury 

that “preliminary instructions should be considered by you along with the 

2 Indiana Jury Rule 20 provides the following regarding preliminary instructions:

(a) The court shall instruct the jury before opening statements by reading the appropriate 

instructions which shall include at least the following:

(1) the issues for trial;

(2) the applicable burdens of proof;

(3) the credibility of witnesses and the manner of weighing the testimony to be 

received;

(4) that each juror may take notes during the trial and paper shall be provided, but 

note taking shall not interfere with the attention to the testimony;

(5) the personal knowledge procedure under Rule 24;

(6) the order in which the case will proceed;

(7) that jurors, including alternates, may seek to ask questions of the witnesses by 

submission of questions in writing;

(8) that jurors, including alternates, are permitted to discuss the evidence among 

themselves in the jury room during recesses from trial when all are present, as long as 

they reserve judgment about the outcome of the case until deliberations commence. 

The court shall admonish jurors not to discuss the case with anyone other than 

fellow jurors during the trial;

* * * * *

(c) It is assumed that the court will cover other matters in the preliminary instructions.

(d) The court shall provide each juror with the written instructions while the court reads them.

3 Indiana Pattern Criminal Jury Instruction No. 13.1000 sets forth a pattern instruction for “Burden of 

Proof—Reasonable Doubt—Final Instruction.” The trial court did not read this pattern instruction to the 

jury.
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following final instructions [in] arriving at your verdict in this case.” Tr. Vol. 

III p. 206; Appellant’s App. Vol. II p. 216.

[13] In support of his arguments, Jones relies on Indiana Jury Rule 26(a), which 

provides:

The court shall read appropriate final instructions, which shall 

include at least the following: 

(1) the applicable burdens of proof; 

(2) the credibility of witnesses; and, 

(3) the manner of weighing the testimony received.

The court shall provide each juror with written instructions 

before the court reads them. Jurors shall retain the written 

instructions during deliberations. The court may, in its 

discretion, give some or all final instructions before final 

arguments, and some or all final instructions after final 

arguments.

[14] Although the trial court did not instruct the jury regarding the burden of proof 

in the final instructions as required by Jury Rule 26, we cannot conclude that 

fundamental error occurred. It is well-settled that instructions must be 

considered as a whole and in relation to each other. Pattison, 54 N.E.3d at 365. 

The substance of the alleged missing final instruction was adequately covered 

by the preliminary instructions read to the jury and incorporated in the final 

instructions. Because the jury instructions, considered as a whole, did not make 
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a fair trial impossible, the trial court did not fundamentally err when it did not 

repeat the burden of proof in the final instructions. See, e.g., G.C.B. v. State, 496 

N.E.2d 769, 770 (Ind. 1986) (holding that, because the preliminary instructions 

outlined the elements of the offense and the jury was told to consider the 

preliminary instructions in deliberations, the defendant’s rights were not 

violated by the omission of a final instruction on the elements of robbery); Cruz 

Rivera v. State, 127 N.E.3d 1256, 1259 (Ind. Ct. App. 2019) (finding no 

fundamental error where, while the trial court instructed the jury on the burden 

of proof during final instructions, the trial court did not instruct the jury on the 

credibility of witnesses and the manner of weighing testimony), trans. denied.

II. Burden of Proof

[15] Next, Jones argues the trial court failed to instruct the jury regarding the burden 

of proof for each count except for Count I. In the preliminary instructions, the 

trial court defined each charge; listed the elements of each charge; and for each 

charge, informed the jury that it must find Jones not guilty “if the State failed to 

prove each of these elements beyond a reasonable doubt.” See Tr. Vol. II pp. 

134-143; Appellant’s App. Vol. II pp. 176-191. In the final instructions, the trial 

court did not repeat those preliminary instructions.4

 The trial court did, 

4 Indiana Pattern Criminal Jury Instruction 13.3900 provides:

[Give standard instruction on charged offense, which should conclude with the following 

paragraph:]

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the 

Defendant not guilty of ___________, a Level ___________ felony, as charged in Count 

___________.
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however, instruct the jury that, if the State failed to prove rape as charged in 

Count I, the jury could consider whether the State proved the lesser-included 

offense of attempted rape. The trial court then defined attempted rape and 

noted that the State was required to prove the elements “beyond a reasonable 

doubt.” Tr. Vol. III p. 207; Appellant’s App. Vol. II pp. 219-20. The trial court 

also informed the jury that “preliminary instructions should be considered by 

you along with the following final instructions [in] arriving at your verdict in 

this case.” Tr. Vol. III p. 206; Appellant’s App. Vol. II p. 216.

[16] Although the trial court’s final instructions did not repeat the elements of the 

charged offenses and the burden with respect to each charged offense, again, it 

is well-settled that instructions must be considered as a whole and in relation to 

each other. Pattison, 54 N.E.3d at 365. The preliminary instructions, which 

were incorporated by the final instructions, adequately covered the burden of 

proof for each charge. The final instructions then also covered the burden of 

proof for the lesser-included offense of attempted rape for Count I. Because the 

jury instructions, considered as a whole, did not make a fair trial impossible, the 

trial court did not fundamentally err when it did not repeat the preliminary 

instructions regarding each offense in the final instructions. See, e.g., G.C.B., 

496 N.E.2d at 770 (holding that, because the preliminary instructions outlined 

the elements of the offense and the jury was told to consider the preliminary 

instructions in deliberations, the defendant’s rights were not violated by the 

omission of a final instruction on the elements of robbery).
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Conclusion

[17] Jones has failed to demonstrate fundamental error regarding the jury 

instructions. We affirm.

[18] Affirmed.

Riley, J., and Mathais, J., concur.