MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 22 2016, 9:10 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ariel Lasos, December 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-772 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G01-1409-F5-42715
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 1 of 7 Case Summary [1] Ariel Lasos (“Lasos”) was convicted of Battery Resulting in Serious Bodily
Injury, as a Level 5 felony,1 after a jury trial. He now appeals.
[2] We affirm.
Issue [3] Lasos raises one issue for our review, which we restate as whether it was
fundamental error for the trial court to issue certain jury instructions related to
the jury’s deliberative process.
Facts and Procedural History [4] On September 6, 2014, Lasos was part of a group of individuals fighting at a bar
in Indianapolis. The fight escalated, and Lasos retrieved a baseball bat from his
car. Lasos then used the bat to strike the back of another man’s head. That
individual, Victor Castro, had been attempting to avoid the crowd of people
fighting. Castro immediately lost consciousness after Lasos struck him.
Lasos’s conduct was witnessed by officers from the Lawrence Police
Department who had been called to respond to the scene.
1 Ind. Code § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 2 of 7 [5] On September 8, 2014, Lasos was charged with Battery Resulting in Serious
Bodily Injury, as a Level 5 felony; Battery with a Deadly Weapon, as a Level 5
felony;2 and Resisting Law Enforcement, as a Level 6 felony.3
[6] On March 2, 2016, a jury trial was conducted, at the conclusion of which the
jury found Lasos guilty of Battery Resulting in Serious Injury and not guilty on
the other two counts. On March 18, 2016, the trial court sentenced Lasos to
four years imprisonment, with two years suspended to probation.
[7] This appeal ensued.
Discussion and Decision [8] Lasos challenges the propriety of certain jury instructions that the trial court
issued. Our standard of review with respect to jury instructions generally has
been set forth by the Indiana Supreme Court:
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. 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. Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in
2 I.C. § 35-42-2-1. 3 I.C. § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 3 of 7 reversal unless the entire jury charge misleads the jury as to the law in the case.
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (citations and quotations
omitted).
[9] Lasos acknowledges that he did not object to any of the challenged jury
instructions at trial, but argues that the trial court’s instructions were so
deficient as to rise to the level of fundamental error. Cf. id. In such cases, we
will reverse only if an error “is a substantial blatant violation of basic principles
and where, if not corrected it would deny a defendant fundamental due
process.” Id. (citations and quotations omitted). The fundamental error rule is
a narrow exception to the requirement for a contemporaneous objection to an
erroneous instruction, and affords relief “only in egregious circumstances that
made a fair trial impossible.” Id. (citations and quotations omitted).
[10] Here, Lasos challenges part or all of three jury instructions. Instruction 10
includes within it a statement to the jurors that “[y]ou must decide the facts
from your memory of the testimony and exhibits admitted for your
consideration.” (App’x at 67.) Instruction 34 states, in its entirety, “The
transcript of the trial will not be available during your deliberations. Base your
verdict on the evidence as you remember it.” (App’x at 94.) Instruction 32
states in part, “I often am not allowed to answer your questions, except by re-
reading all of the jury instructions.” (App’x at 91-92.) Lasos contends that
these three statements are contrary to Indiana Code section 34-36-1-6, Indiana
Jury Rule 28, and interpretive case law. Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 4 of 7 [11] Indiana Code section 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the juror as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
The jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.
Lasos argues that the jury instructions cannot be reconciled with the statute and
the rule, because the instructions “fail to inform the jury of its right to re-hear
testimony in the case of disagreement (or even without a disagreement)” and
“affirmatively suggest that listening to testimony is impossible … because the
jurors must decide the case solely on ‘the evidence as [jurors] remember it’ or
‘from [their] memory’” because no transcript would be available and the court
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 5 of 7 often is unable to answer juror questions. (Appellant’s Br. at 9.) Lasos argues
that these instructions are incorrect, and this amounted to a violation of the
very right to trial by jury.
[12] We disagree. With respect to questions from the jury generally, Lasos
challenges a single sentence in Instruction 32 related to what answers the trial
court stated it might or might not be able to provide. In its full context,
Instruction 32 provides: “Any question for me must be in writing and given to
the bailiff. I often am not allowed to answer your questions, except by re-
reading all of the jury instructions.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 22 2016, 9:10 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ariel Lasos, December 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-772 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G01-1409-F5-42715
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 1 of 7 Case Summary [1] Ariel Lasos (“Lasos”) was convicted of Battery Resulting in Serious Bodily
Injury, as a Level 5 felony,1 after a jury trial. He now appeals.
[2] We affirm.
Issue [3] Lasos raises one issue for our review, which we restate as whether it was
fundamental error for the trial court to issue certain jury instructions related to
the jury’s deliberative process.
Facts and Procedural History [4] On September 6, 2014, Lasos was part of a group of individuals fighting at a bar
in Indianapolis. The fight escalated, and Lasos retrieved a baseball bat from his
car. Lasos then used the bat to strike the back of another man’s head. That
individual, Victor Castro, had been attempting to avoid the crowd of people
fighting. Castro immediately lost consciousness after Lasos struck him.
Lasos’s conduct was witnessed by officers from the Lawrence Police
Department who had been called to respond to the scene.
1 Ind. Code § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 2 of 7 [5] On September 8, 2014, Lasos was charged with Battery Resulting in Serious
Bodily Injury, as a Level 5 felony; Battery with a Deadly Weapon, as a Level 5
felony;2 and Resisting Law Enforcement, as a Level 6 felony.3
[6] On March 2, 2016, a jury trial was conducted, at the conclusion of which the
jury found Lasos guilty of Battery Resulting in Serious Injury and not guilty on
the other two counts. On March 18, 2016, the trial court sentenced Lasos to
four years imprisonment, with two years suspended to probation.
[7] This appeal ensued.
Discussion and Decision [8] Lasos challenges the propriety of certain jury instructions that the trial court
issued. Our standard of review with respect to jury instructions generally has
been set forth by the Indiana Supreme Court:
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. 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. Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in
2 I.C. § 35-42-2-1. 3 I.C. § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 3 of 7 reversal unless the entire jury charge misleads the jury as to the law in the case.
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (citations and quotations
omitted).
[9] Lasos acknowledges that he did not object to any of the challenged jury
instructions at trial, but argues that the trial court’s instructions were so
deficient as to rise to the level of fundamental error. Cf. id. In such cases, we
will reverse only if an error “is a substantial blatant violation of basic principles
and where, if not corrected it would deny a defendant fundamental due
process.” Id. (citations and quotations omitted). The fundamental error rule is
a narrow exception to the requirement for a contemporaneous objection to an
erroneous instruction, and affords relief “only in egregious circumstances that
made a fair trial impossible.” Id. (citations and quotations omitted).
[10] Here, Lasos challenges part or all of three jury instructions. Instruction 10
includes within it a statement to the jurors that “[y]ou must decide the facts
from your memory of the testimony and exhibits admitted for your
consideration.” (App’x at 67.) Instruction 34 states, in its entirety, “The
transcript of the trial will not be available during your deliberations. Base your
verdict on the evidence as you remember it.” (App’x at 94.) Instruction 32
states in part, “I often am not allowed to answer your questions, except by re-
reading all of the jury instructions.” (App’x at 91-92.) Lasos contends that
these three statements are contrary to Indiana Code section 34-36-1-6, Indiana
Jury Rule 28, and interpretive case law. Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 4 of 7 [11] Indiana Code section 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the juror as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
The jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.
Lasos argues that the jury instructions cannot be reconciled with the statute and
the rule, because the instructions “fail to inform the jury of its right to re-hear
testimony in the case of disagreement (or even without a disagreement)” and
“affirmatively suggest that listening to testimony is impossible … because the
jurors must decide the case solely on ‘the evidence as [jurors] remember it’ or
‘from [their] memory’” because no transcript would be available and the court
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 5 of 7 often is unable to answer juror questions. (Appellant’s Br. at 9.) Lasos argues
that these instructions are incorrect, and this amounted to a violation of the
very right to trial by jury.
[12] We disagree. With respect to questions from the jury generally, Lasos
challenges a single sentence in Instruction 32 related to what answers the trial
court stated it might or might not be able to provide. In its full context,
Instruction 32 provides: “Any question for me must be in writing and given to
the bailiff. I often am not allowed to answer your questions, except by re-
reading all of the jury instructions. Because I have given you those instructions,
you may be able to answer your questions by reviewing them.” (App’x at 91-
92.) In context, the meaning of the sentence Lasos challenges is plain: it
instructs the jury to consider whether it can answer its own questions, thereby
facilitating the process of the jury’s deliberation. Lasos’s brief does not specify
how the sentence—in or out of its context—is incorrect. We thus find no error
with respect to Instruction 32.
[13] Instructions 10 and 34 relate to the requirement that the jurors use the exhibits
and their memory of the testimony to decide the case, and informs the jury that
a transcript of the testimony will not be available. Lasos argues that the
instructions are erroneous because they do not inform jurors of their “right” to
obtain playback of a recording of the testimony from the trial. (Appellant’s Br.
at 9.) Lasos directs us to no enunciation of such a right, but nevertheless insists
that it exists. Neither Section 34-36-1-6 nor Jury Rule 28 require that courts
inform juries of such a right, and neither of them by their terms require that the
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 6 of 7 court replay audio recordings of testimony. Rather, this Court has held that a
trial court did not abuse its discretion when a criminal defendant claimed that
he was prejudiced when a trial court replayed a recording of the victim’s
testimony. Parks v. State, 921 N.E.2d 826, 831-32 (Ind. Ct. App. 2010), trans.
denied. We decline to conclude that Parks gave rise to a right for the jury to hear
playback of testimony—let alone that it requires trial courts to instruct juries of
such a right. We accordingly find no error, much less fundamental error, in
Instructions 10 and 34.
Conclusion [14] The trial court did not err in its instruction of the jury.
[15] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-772 | December 22, 2016 Page 7 of 7