Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-65 | September 15, 2015 Page 1 of 8

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

Jane Ann Noblitt

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jimmie Hair, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 15, 2015

Court of Appeals Cause No.

03A01-1502-CR-65

Appeal from the Bartholomew 

Superior Court

The Honorable James D. Worton, 

Judge

Trial Court Cause No.

03D01-1406-FA-2794

Barnes, Judge.
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Case Summary

[1] Jimmie Hair appeals his convictions for Class A felony attempted murder and 

Class B felony unlawful possession of a firearm by a serious violent felon. We 

affirm.

Issue

[2] Hair raises one issue, which we restate as whether the manner in which the jury 

was instructed resulted in fundamental error.

Facts

[3] On June 13, 2014, Hair got in an argument over the phone with Ericxon 

Rosado. The argument escalated into a fist fight between the two men later that 

day. The fight ended when police arrived at the scene. 

[4] On June 16, 2014, Hair was walking in Columbus with a friend, Dai’von 

Corum, and saw Rosado sitting in the rear passenger seat of a car parked on the 

street. Hair, who had a key to his girlfriend’s car, used her gun, which she kept 

in her locked car, to shoot at Rosado three or four times. Rosado was shot in 

the neck, and the cellphone in his hand was also struck by a bullet. After the 

shooting, Hair gave the gun to his girlfriend and asked her to “get rid of it.” Tr. 

p. 106. Rosado survived the shooting. 

[5] On June 23, 2014, the State charged Hair with Class A felony attempted 

murder, Class B felony aggravated battery, and Class B felony unlawful 

possession of a firearm by a serious violent felon. Hair was tried by a jury and 
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found guilty as charged. The trial court entered convictions on the attempted 

murder and possession of a firearm charges. Hair now appeals.

Analysis

[6] Hair argues that the jury was improperly instructed on specific intent as it 

related to the attempted murder charge, resulting in fundamental error. Hair 

did not object to the trial court’s final instructions and acknowledges that the 

issue is reviewed for fundamental error. The fundamental error exception to 

the doctrine of waiver is extremely narrow and applies only when an error 

constitutes a blatant violation of basic principles, the harm or potential for harm 

is substantial, and the resulting error denies the defendant fundamental due 

process. Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). 

[7] In Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991), our supreme court held:

that an instruction which purports to set forth the elements which 

must be proven in order to convict of the crime of attempted 

murder must inform the jury that the State must prove beyond a 

reasonable doubt that the defendant, with intent to kill the 

victim, engaged in conduct which was a substantial step toward 

such killing.

The court reversed Spradlin’s attempted murder conviction because:

Nowhere in the instructions is there a requirement that the State 

prove that the Spradlins, at the time that they struck, stabbed and 

cut the victims, intended to kill such victims. . . . Simply stated, 

in order to attempt to commit a crime, one must intend to 

commit that crime while taking a substantial step toward the 

commission of the crime.
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Spradlin, 569 N.E.2d at 951.

[8] Here, after the close of evidence, the parties reviewed the trial court’s final 

instructions and discussed each one.1 Regarding the instruction defining 

attempted murder, Hair’s attorney requested that the instruction be modified. 

He stated:

[Defense Counsel]: . . . it says a person attempts to commit 

murder when acting with a specific intent to 

kill the person. I would say that then it 

should read he knowingly or intentionally 

engages in conduct that constitutes a 

substantial step toward killing that person a 

Class A felony. Reason being . . . this seems 

to be a combined instruction of both murder 

and then the attempt statute I think there, 

there’s well I know there’s specific intent to 

kill is knowingly or intentionally engaging in 

that conduct I think that’s what the statute 

reads I think that should be in there.

[Prosecutor]: Judge, I’m pulling up the statute to see what 

it says.

[Defense Counsel]: Knowingly or intentionally kill somebody.

 

1

 It is not entirely clear whose proposed jury instructions the parties were discussing. The State’s attempted 

murder instruction is included in Hair’s appendix, and it does not use the term “knowingly or intentionally.” 

Regardless, it is clear from the transcript that Hair requested the term “knowingly and intentionally” be 

added.
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[Prosecutor:] Yeah. So where are you wanting the 

knowing and intentionally?

[Defense Counsel:] He knowingly or intentionally engages in

conduct.

* * * * *

[Defense Counsel]: I agree with the numbering and then um

since he [sic] firing the handgun was the 

knowingly or intentionally I would say did 

knowingly or intentionally fire a handgun in 

the direction of Ericxon Rosado.

Tr. pp. 269-70. Pursuant to this request, Final Instruction No. 18 provided in 

part:

A person attempts to commit murder when, acting with the 

specific intent to kill another person, he knowingly or 

intentionally engages in conduct that constitutes a substantial 

step toward killing that person.

To convict the defendant, the State must have proved each of the 

following elements beyond a reasonable doubt:

1. The defendant

2. Acting with the specific intent to kill Ericxon Rosado.

3. Did knowing or intentionally fire a handgun in the 

direction of Ericxon Rosado.
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4. Which was conduct constituting a substantial step toward 

the commission of the intended crime of killing Ericxon Rosado.

App. p. 132.

[9] Hair contends this instruction made it difficult, if not impossible, for the jury to 

comprehend that, to convict Hair of attempted murder, it must find he acted 

with the specific intent to kill and that, to convict Hair of aggravated battery,

the knowingly or intentionally standard applied. He claims this was 

compounded by the use of the “knowingly and intentionally” language in the 

instruction outlining the elements of attempted murder. 

[10] In response, the State asserts that, because Hair requested that the “knowingly 

or intentionally” language be added to the instruction, he invited any error 

associated with the instruction. The invited error doctrine is grounded in 

estoppel and forbids a party from taking advantage of an error that he or she

commits, invites, or which is the natural consequence of his or her own neglect 

or misconduct. Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014), cert. denied. 

We agree with the State that, by asking that “knowingly or intentionally” be 

inserted into the instruction, Hair cannot now take advantage of that error by 

arguing that the jury was improperly instructed. See Williams v. State, 735 

N.E.2d 785, 789 (Ind. 2000) (referring to a challenge to an attempted murder 

instruction as “interesting,” but not available on appeal because the instruction 

was given as modified per the request of the defense). 
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[11] Even if the modification requested by Hair were not invited error, he has not 

established fundamental error in the manner in which the jury was instructed. 

Our supreme has explained that Spradlin errors are not per se reversible, 

especially when the intent of the perpetrator was not a central issue at trial or if 

the wording of the instruction sufficiently suggested the requirement of intent to 

kill. Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind. 1999).

[12] Here, Final Instruction No. 18 twice informed the jury that one must act with 

the specific intent to kill when he or she commits a substantial step toward the 

murder. In its final instructions, the trial court also read the charges, which 

alleged in part that Hair, “acting with the specific intent to kill Ericxon Rosado, 

did fire a handgun in the direction of Ericxon Rosado, which was conduct 

constituting a substantial step toward the commission of the intended crime of 

killing Ericxon Rosado.” App. p. 131. Further, the jury was instructed on the 

elements of the battery, and the terms “knowingly” and “intentionally” were 

defined for the jury. Thus, the instructions as a whole explained the specific 

intent requirement to the jury.

2

 

[13] Moreover, although Hair claims on appeal that his identity was not an issue, his 

theory of the case at trial was that Corum shot Rosado. See App. p. 292 

 

2

 Hair urges us not to consider the other final instructions in conducting our fundamental error analysis. He 

cites Beasley v. State, 643 N.E.2d 346, 348 (Ind. 1994), which acknowledged that jury instructions are 

evaluated as a whole unless “the trial court lists the elements of attempted murder and includes an incorrect

mens rea[.]” Beasley is not applicable here where Hair also argues that the final instructions as a whole did 

not clearly distinguish between the mens rea for attempted murder and battery.
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(arguing in closing “Corum is we believe who shot Ericxon”). Because intent 

was not at issue and the instructions as a whole repeatedly referenced the 

necessity of a specific intent to kill Ericxon, the manner in which the jury was 

instructed was not fundamental error.

Conclusion

[14] Because Hair requested the language about which he now complains, he invited

any error associated with the language. Even if it were not invited error, the 

wording of the instruction was not fundamental error. We affirm.

[15] Affirmed.

Kirsch, J., and Najam, J., concur.