Court of Appeals of Indiana | Opinion 18A-CR-1176| October 24, 2018 Page 1 of 7

ATTORNEYS FOR APPELLANT

Scott L. Barnhart

Brooke Smith

Keffer Barnhart LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Malcolm R. DePriest,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 24, 2018

Court of Appeals Case No.

18A-CR-1176

Appeal from the Vanderburgh 

Circuit Court

The Honorable David D. Kiely, 

Judge

The Honorable Michael J. Cox, 

Magistrate

Trial Court Cause No.

82C01-1712-F4-7397

Crone, Judge.

Case Summary

[1] Malcolm R. DePriest appeals his convictions for level 4 felony unlawful 

possession of a firearm by a serious violent felon (“SVF”) and class A 
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misdemeanor resisting law enforcement. He argues that the trial court 

committed fundamental error by instructing the jury that there would be a 

second phase of the trial if the jury found beyond a reasonable doubt that he 

knowingly or intentionally possessed a firearm. Finding no error, we affirm.

Facts and Procedural History

[2] On September 28, 2017, an Evansville police officer responded to a report of an 

incident in progress involving a man with two guns. The officer saw DePriest

exit a building, get on a bicycle, and ride away. The officer activated his 

emergency lights and followed DePriest. DePriest looked back twice at the 

officer. The officer briefly activated his siren twice. DePriest started peddling 

faster. The officer saw DePriest take a handgun from his waistband and throw 

it. DePriest was eventually stopped and arrested, and the handgun was 

recovered.

[3] The State charged DePriest with level 4 felony unlawful possession of a firearm 

by a SVF and class A misdemeanor resisting law enforcement and alleged that 

he was a habitual offender. At trial, the trial court provided the jury with the 

following preliminary instruction:

In Count 1, the Defendant is charged with Possession of a 

Firearm in Violation of Indiana Code. The trial will be in two (2) 

stages. In the first stage, there will be a trial on the issue of 

whether the Defendant knowingly or intentionally possessed the 

firearm as charged in Count 1. If you find beyond a reasonable 

doubt that the Defendant knowingly or intentionally possessed 

the firearm as charged in Count 1, there will be a second stage of 

the trial. In the second stage, there will be a trial of the issue 
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whether the Defendant committed a crime by possessing a 

firearm.

Appellant’s App. Vol. 2 at 50. Neither party objected to the instruction. 

[4] The jury found that DePriest knowingly or intentionally possessed a firearm 

and found him guilty of resisting law enforcement. DePriest admitted that he 

was a SVF and a habitual offender. The trial court sentenced DePriest to six 

years for unlawful possession of a firearm by a SVF, with a seven-year 

enhancement for being a habitual offender and a concurrent one-year sentence 

for resisting law enforcement. This appeal ensued.

Discussion and Decision

[5] DePriest asserts that the preliminary instruction on bifurcation constituted 

fundamental error. We observe that “[t]he manner of instructing a jury is left to 

the sound discretion of the trial court. 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.” Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct. 

App. 2012) (citation omitted), trans. denied.

[6] Because DePriest failed to object to the jury instruction, he may obtain reversal 

only if the instruction constituted fundamental error. See Knapp v. State, 9 

N.E.3d 1274, 1281 (Ind. 2014) (“Failure to object at trial waives an issue on 

appeal unless the appellant can show fundamental error.”), cert. denied (2015). 

The fundamental error exception to the contemporaneous objection rule is
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extremely narrow, and applies only when the 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. The error claimed must either make a 

fair trial impossible or constitute clearly blatant violations of 

basic and elementary principles of due process. This exception is 

available only in egregious circumstances.

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations and quotation marks 

omitted).

[7] Specifically, DePriest contends that the instruction constitutes fundamental 

error because “any reference to the second stage is prejudicial and improperly 

alludes to the automatic requirement of a second stage and defendant’s prior 

criminal history or the possibility that he or she has one.” Appellant’s Br. at 

9. We disagree. In Williams v. State, 834 N.E.2d 225 (Ind. Ct. App. 2005),

another panel of this Court upheld a substantively identical instruction that 

stated:

The Defendant is charged with Illegal Possession of a Firearm. 

The trial of charge [sic] will be in two (2) stages. In the first stage, 

there will be a trial on the issue of whether the Defendant 

knowingly or intentionally possessed the firearm as charged. If 

you find beyond a reasonable doubt that the defendant 

knowingly or intentionally possessed the firearm as charged, 

there will be a second stage of the trial. In the second stage, there 

will be a trial of the issue whether the Defendant committed a

crime by possessing a firearm.

Id. at 228. In concluding that the instruction was proper, the Williams court

reasoned as follows:
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With bifurcation ... comes the difficulty of explaining to a jury 

why the defendant is facing trial for merely possessing a firearm. 

To the extent the trial court’s instruction informed the jury that Williams 

was alleged to have possessed the firearm illegally for some reason, such 

was likely already the common sense conclusion of the jurors. The 

instruction also is clear that there would be a second phase of the 

trial if, and only if, the jury first concluded beyond a reasonable 

doubt that Williams had knowingly or intentionally possessed a 

firearm. It did not, as Williams argues, imply that a second 

phase of the trial was inevitable.

.... Here, the trial court circumvented legitimate concerns 

regarding fairness by avoiding reference to Williams as a “serious 

violent felon” until after the jury had decided whether he had 

knowingly or intentionally possessed the AK-47. ....

In sum, we conclude the trial court here struck the proper 

balance between advising the jury that Williams had indeed been 

charged with a firearm-related crime and avoiding identifying 

Williams as a “serious violent felon” from the outset of trial. 

Although current precedent does not require trial courts to 

bifurcate SVF trials, we believe that the bifurcation procedure 

serves the ends of justice in such trials and urge our state’s trial 

judges to use this procedure in SVF cases.

Id. at 227-28 (emphasis added).

[8] To the extent DePriest argues that mentioning a second phase of the trial 

suggests it is automatic, we reach the same conclusion as the Williams court. 

Here, the instruction clearly states that there would be a second phase of the 

trial only if the jury first concluded beyond a reasonable doubt that DePriest

knowingly or intentionally possessed a firearm. As to DePriest’s argument that 
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the instruction’s reference to a second phase suggests that the defendant has or 

might have a criminal history, we disagree. The instruction simply states that in 

the second stage the jury would consider whether the defendant committed a 

crime by possessing a firearm; there is no mention of any facts or circumstances 

or law as to what makes possessing a firearm a crime. We are unpersuaded that 

the instruction is prejudicial. 

[9] We observe that the Williams court’s reasoning in upholding the instruction and 

advocating bifurcation in SVF cases was endorsed by our supreme court in

Russell v. State, 997 N.E.2d 352, 354 (Ind. 2013), which addressed a claim of 

improper trial bifurcation rather than the propriety of a jury instruction. In 

arguing that bifurcation was improper, Russell argued that “instructing the jury 

on the non-existent offense of ‘unlawful possession of a firearm’ was prejudicial 

because most jurors would know that possession of a firearm, by itself, is not a 

criminal offense [and] jurors would infer a second phase of trial.” Id. The

supreme court concluded that this argument failed “[b]ecause the trial court 

instructed the jury to consider whether Russell had ‘unlawfully’ possessed a 

firearm and whether Russell was a SVF in two separate phases of trial.” Id. In 

reaching this conclusion, the supreme court observed that “this argument was 

rejected in Williams v. State, where the Court of Appeals held that by bifurcating 

the defendant’s SVF trial so that the jury would consider knowing possession of 

a firearm and the defendant’s SVF status separately, the trial court ‘avoid[ed] 

identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.’” 

Id. (quoting Williams, 834 N.E.2d at 228) (brackets in Russell).
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[10] Based on the foregoing, we conclude that the trial court did not commit error, 

let alone fundamental error, in giving the challenged instruction. Therefore, we 

affirm.

[11] Affirmed.

Najam, J., and Pyle, J., concur.