Hero v. State
| Decision Date | 20 March 2002 |
| Docket Number | No. 45A03-0106-CR-172.,45A03-0106-CR-172. |
| Citation | 765 N.E.2d 599 |
| Parties | Brian Allen HERO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Marce Gonzalez, Jr., J.J. Stankiewicz, Merrillville, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Brian Hero appeals his conviction following a jury trial of criminal deviate conduct, a Class B felony. We affirm.
Hero raises two issues for our review, which we now restate as follows:
1. Whether the trial court properly submitted an additional instruction to the jury after the jury had begun deliberating; and
2. Whether there was sufficient evidence to support Hero's conviction of criminal deviate conduct.
The facts most favorable to the conviction are as follows. R.G. attended a New Year's Eve party at the home of Brian Hero and his wife. There were approximately twenty people at the party that night. As with many New Year's parties, the guests were drinking, and R.G., who had not consumed any alcohol in over nine months, drank five beers and one shot over the course of five hours. At approximately 1:00 a.m., R.G. fell asleep on the Heros' living room couch.
Sometime later, R.G. was awakened by the sound of her infant son crying and she felt something going in and out of her vagina. Hero was on top of her, and R.G. pushed him off. She then went to the kitchen to make a bottle for her crying son.
On January 10, 2000, R.G. filed a report with the police stating that Hero had raped her. Hero was subsequently charged with criminal deviate conduct, a Class B felony. The matter went to trial by a jury. During deliberation, the jury asked multiple times for clarification of when "penetration" occurs. The court eventually granted an additional instruction, reading such instruction as part of the entire list of original instructions, in open court, in the presence of both parties, and with no notation that it was a new instruction. The jury found Hero guilty of criminal deviate conduct, a Class B felony, and he now appeals.
Hero asserts that the additional jury instruction was improperly given because it prejudiced his rights. We disagree.
Generally, the manner of instructing the jury lies within the sound discretion of the trial court. Lewis v. State, 759 N.E.2d 1077, 1080 (Ind.Ct.App. 2001), trans. denied. A decision on the submission of jury instructions is only reversible upon a showing of abuse of that discretion. Young v. State, 696 N.E.2d 386, 389 (Ind.1998). A defendant is only entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind. Ct.App.1999).
As a general rule, once jury deliberations commence, the trial court should not give any additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind.1982). However, the court may modify its instructions when it is faced with an omitted instruction or an erroneous instruction, so long as it is fair to the parties. Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind.1981).
The trial court properly complied with case law and provisions of the Indiana Code in deciding it was permitted to tender an extra instruction. There was a legal lacuna, and the jury desired to be informed as to a point of law arising in the case and not addressed by the instructions. See Ind.Code § 34-36-1-6 (). See also Jenkins, 424 N.E.2d at 1003 (). Because the jury question coincided with a legal lacuna present in the tendered instructions, the lower court had the authority to do more than just re-read the original instructions. Riley v. State, 711 N.E.2d 489, 492 (Ind.1999).
However, once the court decides to modify the instructions because it is faced with an erroneous or omitted instruction, the court must then determine whether or not the modification will prejudice the defendant. See Jenkins, 424 N.E.2d at 1003. ("[Modification] must serve to amend the final instructions by adding one previously omitted or correcting an erroneous one, and must be fair to the parties in the sense that it should not reflect the judge's view of factual matters.").
The trial court in Graves v. State was held to have erred "by providing the jury with an additional instruction and failing to contemporaneously re-read the entire set of final instructions." 714 N.E.2d 724, 727 (Ind.Ct.App.1999). However, trial courts have been correct when they read the additional instruction together with the original set. See Durden v. State, 406 N.E.2d 281 (Ind.Ct.App.1980) (). See also Downs v. State, 656 N.E.2d 849, 853 (Ind.Ct.App.1995) (). What distinguishes Downs from Graves is that in Downs the procedure of reading the additional instruction together with the original set was specifically waived by Downs, whereas in Graves it was not.
In this case, the trial court read the additional instruction in the course of re-reading all prior instructions. The record reveals that the trial court was very aware of the danger of prejudice to Hero in reading only the new instruction to the jury. The trial court judge specifically stated this concern:
I'm going to have the jury instructions redrafted in their entirety and renumbered with this instruction inserted at an appropriate point in the instructions so as not to draw any undue emphasis to it. No reference will be made to the jury, no specific reference will be made to the jury regarding this additional instruction rather than simply be advised that the Court has considered their notes and comments and in response will re-read the instructions. After that, they will be sent back to deliberate.
It may be true that when the trial court gives a special instruction on one particular issue, it tends to emphasize that issue as being of primary importance and tends to tell the jury what it ought to do. Wallace v. State, 426 N.E.2d 34, 36 (Ind.1981). However, as evidenced by the trial court judge's comments, the court was aware of this possible danger, and took all precautions to avoid such an emphasis. When the new instruction was added, it was one of nineteen instructions. It was not inserted first or last—a position where it would stand out—but fourth, a natural and logical position amongst the other instructions.
Finally, we look at the possibility of a mistrial if the jury continued to be uncertain on the point of law. "When it is apparent to the trial court that a jury cannot agree upon a verdict after ample time for deliberation, there exists good cause to discharge the jury." Tincher v. Davidson, 762 N.E.2d 1221, 1226 (Ind. 2002). While declaration of a mistrial is generally within the discretion of the trial court, trial courts should facilitate and assist jurors in the deliberative process in order to avoid mistrials. Id. Also, mistrial is a most extreme remedy, only to be invoked when no other course of action can rectify the situation. Id. (Citing Kavanaugh v. State, 695 N.E.2d 629, 632 (Ind. Ct.App.1998)).
Tincher was a comparative fault case where the trial court declared a mistrial due to repeated calculation inconsistencies in the verdict forms returned by the jury. When the jury was sent to deliberate the case, the trial court provided verdict forms—one finding for the plaintiff and one finding for the defendant—and a "General Comparative Fault Verdict Form" (calculation form), which explained comparative fault calculations and which was meant to guide the jury through such calculations. Twice, the jury returned a general verdict for the plaintiff in the amount of $150,000.00. Twice, the calculation form showed the defendant's fault to be 100%. Twice, the jury came up with inconsistent calculations on the form. After the first inconsistent calculation, the court sent the jury back with new forms, informing it that there were inconsistencies, and ordering the jury to read through the verdict forms and reconsider the calculations. This was to no avail, as the jury changed its calculations from the first calculation form, but still came up with inconsistent findings.
In actuality, there was no problem with the general verdict. This was just a jury that was not very adept at mathematical calculation. A unanimous verdict was reached, but the jurors did not do the math correctly.
The Supreme Court vacated the order granting a mistrial, and ordered a judgment entered for the plaintiff in the amount of $150,000.00, finding "that the trial court may have, but was not required, to make further attempts ... to assist the jury in achieving complete consistency." Tincher, 762 N.E.2d at 1226.
Tincher sets out a policy under which juries can be made to work better with the non-prejudicial help of the court. The case shows that assisting the jury in basic problems of understanding is appropriate action for a trial court to take. In the case at bar, the jury had a problem with its understanding of "penetration." This was a basic problem of comprehension, and the court is allowed to assist the...
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