Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2306 | December 2, 2016 Page 1 of 14

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

Matthew D. Anglemeyer

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana 

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hollis Lloyd,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 2, 2016

Court of Appeals Case No. 

49A02-1512-CR-2306

Appeal from the Marion Superior 

Court

The Honorable Jose D. Salinas, 

Judge

Trial Court Cause No. 

49G14-1508-F6-28275

Mathias, Judge.

[1] Hollis Lloyd (“Lloyd”) was convicted in Marion Superior Court of Class A 

misdemeanor possession of marijuana. Lloyd appeals and claims that the trial 
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court committed fundamental error in instructing the jury. Concluding that the 

trial court’s jury instructions did not constitute fundamental error, we affirm. 

Facts and Procedural History

[2] The facts of this case appear to be undisputed. On the night of August 8, 2015, 

Indianapolis Metropolitan Police Officer Michael Gibson (“Officer Gibson”) 

responded to a call of an altercation between a man and a woman at an address 

on Savannah Drive in Indianapolis. When he arrived at the scene, Officer 

Gibson saw a woman, later identified as Leslie Best (“Best”) standing outside 

the home and a man, later identified as Lloyd, sitting by the front porch steps. 

Best and Lloyd were still arguing, and Officer Gibson suggested that Lloyd 

leave for the night to de-escalate the situation. Lloyd agreed and stated that he 

would leave permanently. 

[3] Lloyd then began to go into the house to gather his belongings, making a few 

trips from the house to his car. Lloyd placed his items on the ground near the 

rear of his car. As Officer Gibson went to ask Lloyd when he would be ready to 

leave, he smelled the odor of marijuana. He looked down and saw marijuana in 

a clear plastic bag. Officer Gibson arrested Lloyd for possession of marijuana. 

A subsequent search of the bag revealed marijuana and pills. 

[4] On August 11, 2015, the State charged Lloyd with Level 6 felony possession of 

a controlled substance and Class A misdemeanor possession of marijuana. A 

jury trial was held on December 17, 2015. Lloyd made no objection to the trial 

court’s instructions to the jury. At the conclusion of the trial, the jury found 
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Lloyd not guilty of the felony charge but guilty of the misdemeanor charge. The 

trial court then sentenced Lloyd to 242 days with sixty-two days executed and 

the remainder suspended to probation. Lloyd now appeals. 

Standard of Review

[5] Lloyd claims that the trial court erred in instructing the jury. The manner of 

instructing a jury is left to the sound discretion of the trial court. Quiroz v. State, 

963 N.E.2d 37, 41 (Ind. Ct. App. 2012) (citing Rogers v. State, 897 N.E.2d 955, 

962 (Ind. Ct. App. 2008)). On appeal, we will not reverse the trial court’s ruling 

unless the instructional error is such that the charge to the jury misstates the law 

or otherwise misleads the jury. Id. Jury instructions are to be considered as a 

whole and in reference to one another, and even an erroneous instruction will 

not constitute reversible error if the instructions, taken as a whole, do not 

misstate the law or otherwise mislead the jury. Id. 

[6] Lloyd admits that he did not object to the jury instructions he now claims were 

improper. This failure to object waives the issue for purposes of appeal. Id. at 42 

(citing Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011)). Lloyd attempts to 

avoid this waiver by claiming that the trial court’s instructions constituted 

fundamental error. As we explained in Quiroz:

The fundamental error doctrine provides a vehicle for the review 

of error not properly preserved for appeal. In order to be 

considered fundamental, the error must represent a blatant 

violation of basic principles rendering the trial unfair to the 

defendant and thereby depriving the defendant of fundamental 

due process. The error must be so prejudicial to the defendant’s 
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rights as to make a fair trial impossible. In considering whether a 

claimed error denied the defendant a fair trial, we determine 

whether the resulting harm or potential for harm is substantial. 

Harm is not shown by the fact that the defendant was ultimately 

convicted; instead, harm is determined by whether the 

defendant’s right to a fair trial was detrimentally affected by the 

denial of procedural opportunities for the ascertainment of truth 

to which he would have been entitled. 

Quiroz, 963 N.E.2d at 42 (citing Baker, 948 N.E.2d at 1178). Our supreme court 

has emphasized that the fundamental error exception to the requirement for 

contemporaneous objection is “extremely narrow” and “is available only in 

egregious circumstances.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). 

Preliminary Instruction No. 2.

[7] Lloyd first attacks the trial court’s Preliminary Instruction No. 2, which 

provided as follows: 

You have been selected as jurors and you are bound by your oath 

to try this case fairly and honestly.

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 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.

You must not communicate about this case with anyone else. Do 

not talk to any of the parties, their lawyers or any of the 

witnesses. If anyone tries to talk about the case in your presence, 

you should tell the bailiff immediately and privately. Throughout 

the trial you must not:

 Conduct research on your own or as a group.
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 Use dictionaries, the internet or any other resource to 

gather or send any information about this case.

 Investigate the case, conduct any experiments or attempt 

to gain any specialized knowledge about the case.

 Receive assistance in deciding the case from any outside 

source.

 Have or use laptops or cell phones in the courtroom or in 

the jury room.

 Consume any alcohol or drugs that could affect your 

ability to hear and understand the evidence.

 Read, watch or listen to anything about this trial from any 

source whatsoever, including newspapers, radio, television 

or the internet.

 Listen to discussions among or receive information from 

other people about this trial.

 Visit the scene of any event involved in this case. If you 

happen to pass by the scene, do not stop to investigate.

The reason for these restrictions is to ensure that

Your decision is based only on the evidence presented during this 

trial and the court’s instructions on the law.

You should focus your attention on the court proceedings and 

the evidence, and reach a verdict based upon what you hear and 

see in this court.

Appellant’s App. pp. 33-34.1 Lloyd claims this instruction was faulty for four 

reasons.

 

1

 The trial court’s instructions were printed in all uppercase letters. To make the instructions easier to read, 

we have lowered the case of the instructions as necessary. 
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A. Role of Alternate Jurors

[8] Lloyd first contends that Preliminary Instruction No. 2 failed to inform the jury, 

as provided by Jury Rule 20, that the “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.” Ind. Jury Rule 20(a)(8) (emphasis 

added). We disagree. 

[9] Preliminary Instruction No. 2 plainly informed the jury “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.” Appellant’s App. p. 33 

(emphasis added). We agree with the State that even though the instruction 

does not explicitly state that the alternates could participate in the jury 

discussions, it did inform the jury that the alternates were required to be present 

during such discussions. Thus, the instruction at least suggested or implied that 

the alternates were permitted to participate in the discussion, and the 

instruction placed no restriction upon the alternate jurors with respect to the 

discussions. Accordingly, we cannot say that this aspect of Preliminary 

Instruction No. 2 constituted fundamental error. 

B. Restricted Activities

[10] Lloyd next complains that Preliminary Instruction No. 2 did not inform the 

jurors that they could not use computers or other electronic communication 
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devices such as mobile phones to engage in the list of prohibited activities 

delineated by the instruction. Jury Rule 20(b) states: 

The court shall instruct the jurors before opening statements that 

until their jury service is complete, they shall not use computers, 

laptops, cellular telephones, or other electronic communication 

devices while in attendance at trial, during discussions, or during 

deliberations, unless specifically authorized by the court. In 

addition, jurors shall be instructed that when they are not in court 

they shall not use computers, laptops, cellular telephones, other 

electronic communication devices, or any other method to:

(1) conduct research on their own or as a group regarding the 

case;

(2) gather information about the issues in the case;

(3) investigate the case, conduct experiments, or attempt to 

gain any specialized knowledge about the case;

(4) receive assistance in deciding the case from any outside 

source;

(5) read, watch, or listen to anything about the case from any 

source;

(6) listen to discussions among, or receive information from, 

other people about the case; or

(7) talk to any of the parties, their lawyers, any of the 

witnesses, or members of the media, or anyone else about the 

case, including posting information, text messaging, email, 

Internet chat rooms, blogs, or social websites. 

[11] Preliminary Instruction No. 2 informed the jurors that, throughout the trial, 

they were not permitted to: (1) conduct research on their own or as a group; (2) 

use dictionaries, the Internet, or any other resource to gather or send any 

information about the case; (3) investigate the case, conduct any experiments,
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or attempt to gain any specialized knowledge about the case; (4) receive 

assistance in deciding the case from any outside source; (5) have or use laptops 

or cell phones in the courtroom or in the jury room; (6) consume any alcohol or 

drugs that could affect their ability to hear and understand the evidence; (7) 

read, watch, or listen to anything about this trial from any source whatsoever, 

including newspapers, radio, television, or the Internet; (8) listen to discussions 

among or receive information from other people about the trial; or (9) visit the 

scene of any event involved in the case. Appellant’s App. pp. 33-34. 

[12] Lloyd does not deny this, but claims that the trial court’s instruction failed to 

tell the jurors that they could not use computers or other electronic devices to 

do these activities. We agree with the State that this would have been 

redundant. Preliminary Instruction No. 2 generally informed the jurors of the 

restrictions on their activities. These restrictions were stated generally and 

would apply to activities, e.g., independent research, conducted with a 

computer or otherwise. Nothing in the instruction suggests that these activities 

would be permitted if performed electronically. 

C. Use of Computers and Electronic Communication Devices

[13] Lloyd also complains that Preliminary Instruction No. 2 failed to inform the 

jurors, as required by Jury Rule 20, that they must not engage in the listed 

activities “when they are in court.” Instead, the instruction uses the term 

“throughout the trial.” We fail to see a meaningful difference between these 

limitations. Certainly, these differences do not rise to the level of fundamental 

error. 
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[14] In a related argument, Lloyd claims that Preliminary Instruction No. 2 was 

improper because, although it informs the jurors that they should not have 

laptops or cellular phones in the courtroom or jury room, it “fails to include the 

language under J.R. 20 that “‘until your jury service is complete, you shall not use 

[1] computers, [2] laptops, [3] cellular telephones, or [4] other electronic 

communication devices while in attendance at trial, during discussions, or 

during deliberations, unless specifically authorized by the court.’” Appellant’s Br. p. 

12 (emphases added by appellant). 

[15] However, as noted above, the trial court’s instruction explained to the jurors 

that they were prohibited from using “laptops or cell phones in the courtroom 

or in the jury room” “throughout the trial.” Appellant’s App. pp. 33-34. We 

believe this adequately explained to the jurors that they should not use 

computers or other similar devices during the trial, i.e., until their jury service 

was completed.

D. Communication with Non-Jurors

[16] Lastly, Lloyd notes that Preliminary Instruction No. 2 informs the jurors that 

they “must not communicate about this case with anyone else. Do not talk to 

any of the parties, their lawyers or any of the witnesses. If anyone tries to talk 

about the case in your presence, you should tell the bailiff immediately and 

privately.” Appellant’s App. p. 33. Lloyd complains that this fails to comply 

with Jury Rule 20(b)(7), which states that jurors shall be informed that they 

must not “talk to any of the parties, their lawyers, any of the witnesses, or 
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members of the media, or anyone else about the case, including posting information, text 

messaging, email, Internet chat rooms, blogs, or social websites.” (emphasis added). 

[17] Although the list in Jury Rule 20(b)(7) is more detailed and specific, the trial 

court’s instruction adequately informed the jury that they were generally 

prohibited from communicating about the case “with anyone else.” This broad 

prohibition would include the more specific instances listed in Jury Rule 

20(b)(7). We therefore fail to see any error, much less fundamental error, in the 

trial court’s instruction regarding communicating with others about the case. 

Preliminary Instruction No. 14

[18] Lloyd also attacks the adequacy of Preliminary Instruction No. 14, which 

explained the procedure the jurors were to use if they desired to ask a question 

of a witness. Lloyd notes that the instruction does not specifically mention that 

the alternate jurors may also ask questions. Jury Rule 20(a)(7) provides that the 

jury must be informed “that jurors, including alternates, may seek to ask 

questions of the witnesses by submission of questions in writing.” Preliminary 

Instruction No. 14 stated that “if you have questions [to ask of a witness], 

please raise your hand after the attorneys have asked all of their questions and 

before the witness has left the stand.” Appellant’s App. p. 47. This instruction 

does not specifically include a reference to alternate jurors. It is instead 

generally directed at the entire jury, and does not exclude alternate jurors. 

Accordingly, we conclude that Preliminary Instruction No. 14 does not rise to 

the level of fundamental error. 
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Preliminary Instruction No. 16

[19] Lloyd next attacks Preliminary Instruction No. 16, which provided, “If, at any 

time, you realize you know something about the case or know a witness or the 

defendant, you must inform the bailiff privately at your earliest opportunity.” 

Appellant’s App. p. 49. Lloyd claims that this instruction was insufficient 

because it failed to comply with Jury Rule 20(a)(5), which requires that the 

jurors be instructed regarding the “personal knowledge procedure under [Jury] 

Rule 24.” Jury Rule 24 provides: 

If the court receives information that a juror has personal 

knowledge about the case, the court shall examine the juror 

under oath in the presence of the parties and outside the presence 

of the other jurors concerning that knowledge.

If the court finds that the juror has personal knowledge of a 

material fact, the juror shall be excused, and the court shall 

replace that juror with an alternate. If there is no alternate juror, 

then the court shall discharge the jury without prejudice, unless 

the parties agree to submit the cause to the remaining jurors.

[20] Although the jury was not instructed regarding the specific procedure that the 

trial court was required to follow under Jury Rule 24 if it learned that a juror 

had personal knowledge about the case, Preliminary Instruction No. 16 did 

inform the jury of its obligation to bring to the trial court’s attention any 

personal knowledge the jurors had about the case. As noted by the State, Jury 

Rule 24 is directed to the trial court, not the jurors. We therefore conclude that 

it was not fundamental error to leave out the specific procedure the trial court 

was to follow in Preliminary Instruction No. 16. The jurors were still instructed 
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to inform the trial court, through the bailiff, if they had any personal knowledge 

about the case, the defendant, or the witnesses. None of the jurors in Lloyd’s 

trial indicated that they had such knowledge. Accordingly, we discern no 

fundamental error. 

Final Instruction No. 8

[21] Lastly, Lloyd criticizes the trial court’s Final Instruction No. 8, which provided: 

The alternate juror in this case may accompany the jury to the 

jury room during deliberations. However, until you are 

designated as a replacement for another juror in open court, you 

may not take part in deliberations. You must listen attentively to 

the deliberations and by doing so be prepared to provide your 

view if called to do so.

Appellant’s App. p. 58. 

[22] This instruction, Lloyd claims, is insufficient when compared to Indiana 

Pattern Jury Instruction No. 13.2900, which provides, “The foreperson shall 

prevent alternate jurors from deliberating or voting with the jury. The 

foreperson shall promptly report any violation of this instruction to [the trial 

court judge].” 

[23] We first observe that the Indiana Pattern Jury Instructions “are prepared under 

the auspices of the Indiana Judges Association in conjunction with the Indiana 

Judicial Conference Criminal and Civil Instruction Committees.” Campbell v. 

State, 19 N.E.3d 271, 275 n.3 (Ind. 2014). Although the pattern instructions are 

not formally approved by the Indiana Supreme Court, “they are tacitly 
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recognized by Indiana Trial Rule 51(E).” Id. (citing Halliburton v. State, 1 

N.E.3d 670, 684 n.9 (Ind. 2013)). However, pattern jury instructions are not 

always upheld as correct statements of the law. Boney v. State, 880 N.E.2d 279, 

294 (Ind. Ct. App. 2008). 

[24] Here, Lloyd directs us to no authority that the failure to use a pattern jury 

instruction is necessarily error, much less fundamental error. To be sure, the 

pattern instruction, unlike the court’s instruction, places on the jury foreman the 

duty of ensuring that the alternate juror does not participate in the deliberations. 

Final Instruction No. 8, however, plainly instructed the jury that the alternate 

juror was not to take part in the deliberations. Since we presume that jurors 

follow the trial court’s instructions, Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 

2015), and because Lloyd refers us to nothing that would suggest that the 

alternate did participate in the jury’s deliberations, we find no error, 

fundamental or otherwise, in the trial court’s Final Instruction No. 8. 

Conclusion

[25] At most, Lloyd has established relatively minor differences between the trial 

court’s instructions and the jury rules and pattern jury instructions. Even if it 

would have been the better practice to more closely adhere to the language of 

the jury rules and pattern instructions, Lloyd should have called these issues to 

the trial court’s attention by objecting to the instructions given. Because he did 

not object to the trial court’s instructions, any error is waived, and Lloyd has 

not met his considerable burden of demonstrating that the instructions given 

constituted fundamental error. 
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[26] Affirmed. 

Robb, J., and Brown, J., concur.