Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018 Page 1 of 9

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 

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony Morton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 24, 2018

Court of Appeals Case No.

49A02-1708-CR-1738

Appeal from the Marion Superior 

Court

The Honorable Lisa F. Borges, 

Judge

Trial Court Cause No.

49G04-1605-F1-19983

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1738 | April 24, 2018 Page 2 of 9

Case Summary

[1] Anthony Morton (“Morton”) appeals his convictions for attempted murder, a 

Level 1 felony,1 and arson, as a Level 2 felony.2 The sole issue he raises on 

appeal is whether the trial court committed fundamental error when it 

instructed the jury.

[2] We affirm.

Facts and Procedural History

[3] On May 25, 2016, the State charged Morton with attempted murder, a Level 1 

felony, and two counts of arson resulting in serious bodily, a Level 2 felony. 

On March 14, 2017, the State filed an additional information charging that 

Morton was a habitual offender.3

[4] Morton was tried by jury on June 5 and 6, 2017. The trial court gave the jury 

preliminary instructions regarding, among other things, their duty as jurors, 

including refraining from use of electronics and independent research during 

the trial (instruction number 1); the procedure to follow if they have personal 

knowledge of the case (instruction number 2); and juror questions and the 

procedure for asking them (instruction number 11). Appellant’s Appendix Vol. 

 

1

 Ind. Code § 35-42-1-1 (2016); I.C. § 35-41-5-1(a).

2

 I.C. § 35-43-1-1(a).

3

 I.C. § 35-50-2-8.
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II at 142-44, 158. In addition, the trial court gave the jury preliminary 

instructions regarding the burden of proof and reasonable doubt (instruction 

number 7), and the credibility of witnesses and weighing evidence (instruction 

number 8). Id. at 154-55.

[5] At the conclusion of the trial, the trial court gave the jury two final instructions 

admonishing them to consider the instructions—preliminary and final—as a 

whole (instruction numbers 13 and 14). Id. at 161-62. In addition, the trial 

court once again gave the instruction regarding burden of proof and reasonable 

doubt (instruction number 21). Id. at 169.

[6] No alternate jurors were directed to serve, and the jury found Morton guilty of 

attempted murder and one count of arson as a Level 2 felony. The jury found 

Morton not guilty of the second count of arson. Morton admitted to the 

allegation that he is a habitual offender. On July 13, 2017, the trial court 

sentenced Morton to forty years for attempted murder, enhanced by twenty 

years pursuant to the habitual offender adjudication, and to six years for arson 

as a Level 2 felony. This appeal ensued. 

Discussion and Decision

[7] Morton contends that the trial court erred 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 

to tender or reject a jury instruction only if there is an abuse of 

that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
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2013). We determine whether the instruction states the law 

correctly, whether it is supported by record evidence, and 

whether its substance is covered by other instructions. Id. at 345-

46. “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.” Whitney v. State, 750 N.E.2d 342, 344 

(Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196 

(Ind. 1996)).

Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).

[8] At trial, Morton did not object to either the preliminary or final jury 

instructions.

Where ... the defendant failed to preserve an alleged instructional 

defect, the objection is waived, and reversal is warranted only in 

instances of fundamental error. Wright v. State, 730 N.E.2d 713, 

716 (Ind. 2000). “Error is fundamental if it is ‘a substantial 

blatant violation of basic principles’ and where, if not corrected, 

it would deny a defendant fundamental due process.” Id. 

(quoting Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998)). This 

exception to the general rule requiring a contemporaneous 

objection is narrow, providing relief only in “egregious 

circumstances” that made a fair trial impossible. Halliburton v. 

State, 1 N.E.3d 670, 678 (Ind. 2013).

Id.; see also Rosales v. State, 23 N.E.3d 8, 15 (Ind. 2015) (“[T]he mere possibility 

of prejudice ... from the inaccurate instruction does not justify reversal of [a]

conviction without a showing that [the defendant] incurred actual prejudice.”). 

When determining whether a defendant suffered a due process violation based 

on an incorrect jury instruction,
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we look to the erroneous instruction not in isolation, but in the 

context of all relevant information given to the jury, including 

other instructions. We find no due process violation where all 

such information, considered as a whole, does not mislead the 

jury as to a correct understanding of the law.

Dickenson v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005) (citations omitted), 

trans. denied. 

[9] Morton maintains that the trial court committed fundamental error by giving

insufficient instructions in preliminary instruction numbers 1 (regarding the 

duty of jurors), 2 (regarding the personal knowledge of a juror), and 11 

(regarding juror questions and procedure). He also contends that the trial court 

fundamentally erred when it failed to repeat preliminary instruction number 8 

(regarding credibility of witnesses and weighing evidence) in the final 

instructions. 

[10] The purpose of jury instructions “is to inform the jury of the law applicable to 

the facts without misleading the jury and to enable it to comprehend the case 

clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 

N.E.2d 1140, 1163 (Ind. 2003). As an initial matter, we note that all of the 

instructions Morton challenges, with the exception of final instruction number
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13, are, verbatim, the Indiana Pattern Criminal Jury Instructions.4 As our 

Supreme Court has noted,

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. Although they are not formally approved for use, 

they are tacitly recognized by Indiana Trial Rule 51(E). 

Halliburton v. State, 1 N.E.3d 670, 684 n. 9 (Ind. 2013).

Campbell v. State, 19 N.E.3d 271, 275 n.3 (Ind. 2014). Thus, we have held that it 

is the “preferred practice” for trial courts to use the pattern jury instructions. 

Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (noting the pattern 

instructions have the “apparent approval of the Indiana Supreme Court as 

evidenced by the preferred treatment given such instructions in [Indiana Rule of 

Trial Procedure 51(E)]”), trans. denied. 

[11] Preliminary jury instruction number 1, which recites verbatim the pattern 

instruction regarding the use of electronic devices and the prohibition against 

doing independent investigation and research, is an accurate statement of the 

law and, as such, we cannot say that it in any way misled the jury. Contrary to 

Morton’s assertion, the instruction adequately advises the jury members that 

 

4

 Preliminary instruction number 1 is Indiana Pattern Criminal Jury Instruction (“pattern instruction”) 

number 1.0100; preliminary instruction number 2 is pattern instruction number 1.2700; preliminary 

instruction number 7 is pattern instruction number 1.1500; preliminary instruction number 8 is pattern 

instruction number 1.1700; and preliminary instruction number 11 is pattern instruction number 1.2200. Vol. 

1, Indiana Judges Association, Indiana Pattern Jury Instructions—Criminal, 4th Ed., Sections 1.0100; 

1.1500; 1.1700; 1.2200; and 1.2700 (2017). Final instruction number 14 is pattern instruction number 

13.0100. Id., Vol. 2, Sec. 13.0100. 
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they may not use electronic devices or conduct their own research until their 

service as jurors is complete. Morton has failed to show that the giving of this 

instruction was fundamental error.

[12] Preliminary instruction number 11 is a verbatim recitation of the pattern 

instruction regarding juror questions and the process for asking such questions. 

Yet, Morton contends the instruction fails to adequately inform alternate jurors 

that they, too, may ask questions. We disagree. This instruction—like all the 

instructions—was read to all the jurors, including the alternates, and Morton 

has articulated no reason why alternate jurors would believe this specific 

instruction did not apply to them, while all other instructions did. Instruction 

number 11 is an accurate statement of the law and, as such, we cannot say that 

it in any way misled the jury, including the alternates.

[13] Instruction number 2 is a verbatim recitation of the pattern instruction 

regarding personal knowledge of the jurors. As Morton points out, the 

instruction does not include “the personal knowledge procedure under [Jury] 

Rule 24[,]” as required by Jury Rule 20(a)(5).5 However, while instruction 

number 2 does not describe the procedures the trial court would employ in the 

event a juror notified the court of personal knowledge about the case, the 

instruction in no way misstates the law. Rather, it emphasized that jurors must 

inform the bailiff privately of such knowledge at the earliest opportunity. And, 

 

5

 The Indiana Jury Rules specify what instructions, at a minimum, a trial court must give. See Ind. Jury 

Rule 20 (regarding preliminary instructions); J.R. 26 (regarding final instructions).
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of course, when the juror informs the bailiff that the juror has personal 

knowledge, that triggers the mandatory procedures discussed in Jury Rule 24; 

i.e., the court examines the juror and decides whether the juror must be 

excused. Because Morton has failed to show that he incurred actual prejudice 

from the giving of instruction number 2, we hold the giving of that instruction 

was not fundamental error.

[14] Finally, Morton maintains that the trial court erred when it failed to repeat 

preliminary instruction number 8 (regarding credibility of witnesses and 

weighing evidence) in the final instructions, citing Indiana Jury Rule 26. 

However, it is well-settled that instructions must be considered as a whole and 

in relation to each other. E.g., Pattison, 54 N.E.3d at 365. And the trial court 

made specific note of this principle in two separate final instructions. The court 

gave final instruction 14, which is the pattern instruction stating that the jury 

must “consider all of the instructions [both preliminary and final] together.” 

Appellant’s App. Vol. II at 162. In addition, the trial court gave the jury final 

instruction 13, which emphasized this principal more specifically and 

explicitly—noting the preliminary instructions regarding “issues for trial, the 

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

evidence ... should be considered by you along with the following final 

instructions in arriving at your verdict in this case.” Id. at 161. Because the 

jury instructions, “considered as a whole, [did] not mislead the jury as to a 

correct understanding of the law[,]” Dickenson, 835 N.E.2d at 548-49, the trial 
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court did not fundamentally err when it did not repeat preliminary instruction 

number 8 in the final instructions.

Conclusion

[15] Morton has failed to show that the trial court fundamentally erred in instructing 

the jury.

[16] Affirmed.

Crone, J., and Brown, J., concur.