MEMORANDUM DECISION FILED Apr 11 2019, 10:29 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Emilee L. Stotts Curtis T. Hill, Jr. Huntington County Public Defender Attorney General of Indiana Marion, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Lee Allred, April 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1538 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1704-F6-95
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 1 of 7 Statement of the Case
[1] Gary Allred (“Allred”) appeals his conviction for Level 6 felony auto theft.1 He
argues that the trial court abused its discretion by giving an accomplice liability
preliminary instruction, which he contends substantially prejudiced his right to
present a defense. Concluding that Allred’s substantial rights were not
prejudiced and that the trial court did not abuse its discretion, we affirm
Allred’s conviction.
[2] We affirm.
Issue
Whether the trial court abused its discretion by instructing the jury on the law regarding accomplice liability.
Facts
[3] On January 12, 2017, Allred accompanied his lifelong friend, Jami Karst
(“Karst”), to test-drive cars. The two went to a local car lot, and Karst decided
to test-drive a black 2001 Kia Sportage. As Karst drove the vehicle, she and
Allred had a conversation about stealing the car. Karst eventually drove the car
to a nearby hardware store. Allred took the original key to the car and entered
the store where he had a copy of the key made. Allred then gave both the
1 IND. CODE § 35-43-4-2.5 (2017). This statute was repealed effective July 1, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 2 of 7 original key and duplicate to Karst, and she left the hardware store to return the
car.
[4] Later that night, Karst returned to the car lot, unlocked the Kia with the newly-
created key, and drove the car away. Karst picked up Allred, as well as her son
and her son’s friend. The group then drove to Florida. Eventually, the car
broke down, and they abandoned it in Florida.
[5] After returning to Indiana, the State charged Allred with Level 6 felony auto
theft. Karst was interviewed by police about her connection with the theft of
the car. Initially, she told police that Allred was the individual who stole the
car from the lot. However, two days before Allred’s jury trial, Karst told
Allred’s counsel that she would testify that she was the individual who returned
at night and stole the car. The next day, Karst informed the State that her
anticipated testimony was going to change.
[6] Based on Karst’s disclosure the day before trial, the State tendered the following
preliminary instruction (“Preliminary Instruction 8”):
Aiding, Inducing, or Causing a crime, I.C. 35-41-2-4
A person who knowingly or intentionally aids, induces, or causes another person to commit Auto Theft is guilty of Auto Theft, even though he does not personally participate in each act constituting Auto Theft.
A person may be convicted of Auto Theft by knowingly aiding, inducing, or causing another to commit Auto Theft, even if the other person has not been prosecuted for, has not been convicted of, or has been acquitted of Auto Theft.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 3 of 7 In order to commit Auto Theft by aiding, inducing or causing another to commit Auto Theft, a person must have knowledge that he is aiding, inducing, or causing the commission of Auto Theft. To be guilty, he does not have to personally participate in the crime nor does he have to be present when the crime is committed. Merely being present at the scene of the crime is not sufficient to prove that he aided, induced, or caused the crime. Failure to oppose the commission of the crime is also insufficient to prove aiding, inducing or causing another to commit the crime. But presence at the scene of the crime and/or failure to oppose the crime’s commission are factors which may be considered in determining whether there was aiding, inducing, or causing another to commit the crime.
(App. 35).
[7] On the day of Allred’s jury trial, the trial court asked if there were any
objections to the preliminary jury instructions. Allred’s counsel objected to the
inclusion of Preliminary Instruction 8, stating, “I would object primarily
because its been presented to me without any ample time to prepare my case or
my defense with the Defendant on this particular . . . instruction here. I feel
that the . . . Defendant is being unfairly . . . and unjustly treated by having to
now defend from a different direction and I would ask that the instruction be
removed.” (Tr. 39-40). The trial court overruled the objection and gave the
instruction.
[8] At trial, Karst testified that while she was the individual who took the car off
the car lot, Allred was aware of and actively participated in the theft of the car.
Karst testified, in relevant part, as follows:
[State]: Did [Allred] know that you were planning to steal the car?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 4 of 7 [Karst]: Yes.
[State]: Did you discuss it with him prior to going to [the hardware store]?
[Karst]: Yes.
***
[State]: Did you guys talk about stealing the car prior to even going to the car lot?
[State]: Why was he making the key then?
[Karst]: So I could go back later and take [the car].
(Tr. 111).
[9] Allred also testified and offered testimony contrary to Karst. He testified that
he had no knowledge of the auto theft, did not participate in the auto theft, and
that Karst alone was responsible for stealing the car. Allred also admitted that
he had a copy of the key made. During closing arguments, Allred’s defense was
twofold. First, he argued that Karst alone was responsible for stealing the car.
Second, he argued that he did not knowingly or intentionally aid, induce, or
cause Karst to steal the car. The jury subsequently found Allred guilty of auto
theft, and he admitted to being an habitual offender. The trial court then
sentenced Allred to two and one-half (2½) years for the auto theft conviction
and enhanced the sentence by four (4) years for being an habitual offender,
resulting in an aggregate sentence of six and one-half (6½) years. Allred now
appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 5 of 7 Discussion
[10] Allred argues that the trial court erred when it gave Preliminary Instruction 8.
We afford trial courts broad discretion in the manner of instructing a jury, and
we review such decisions only for an abuse of discretion. Hayden v. State, 19
N.E.3d 831, 838 (Ind. Ct. App. 2014), reh’g denied, trans. denied. When
reviewing a jury instruction on appeal, we look to: (1) whether the tendered
instruction correctly states the law; (2) whether there is evidence in the record to
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MEMORANDUM DECISION FILED Apr 11 2019, 10:29 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Emilee L. Stotts Curtis T. Hill, Jr. Huntington County Public Defender Attorney General of Indiana Marion, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Lee Allred, April 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1538 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1704-F6-95
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 1 of 7 Statement of the Case
[1] Gary Allred (“Allred”) appeals his conviction for Level 6 felony auto theft.1 He
argues that the trial court abused its discretion by giving an accomplice liability
preliminary instruction, which he contends substantially prejudiced his right to
present a defense. Concluding that Allred’s substantial rights were not
prejudiced and that the trial court did not abuse its discretion, we affirm
Allred’s conviction.
[2] We affirm.
Issue
Whether the trial court abused its discretion by instructing the jury on the law regarding accomplice liability.
Facts
[3] On January 12, 2017, Allred accompanied his lifelong friend, Jami Karst
(“Karst”), to test-drive cars. The two went to a local car lot, and Karst decided
to test-drive a black 2001 Kia Sportage. As Karst drove the vehicle, she and
Allred had a conversation about stealing the car. Karst eventually drove the car
to a nearby hardware store. Allred took the original key to the car and entered
the store where he had a copy of the key made. Allred then gave both the
1 IND. CODE § 35-43-4-2.5 (2017). This statute was repealed effective July 1, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 2 of 7 original key and duplicate to Karst, and she left the hardware store to return the
car.
[4] Later that night, Karst returned to the car lot, unlocked the Kia with the newly-
created key, and drove the car away. Karst picked up Allred, as well as her son
and her son’s friend. The group then drove to Florida. Eventually, the car
broke down, and they abandoned it in Florida.
[5] After returning to Indiana, the State charged Allred with Level 6 felony auto
theft. Karst was interviewed by police about her connection with the theft of
the car. Initially, she told police that Allred was the individual who stole the
car from the lot. However, two days before Allred’s jury trial, Karst told
Allred’s counsel that she would testify that she was the individual who returned
at night and stole the car. The next day, Karst informed the State that her
anticipated testimony was going to change.
[6] Based on Karst’s disclosure the day before trial, the State tendered the following
preliminary instruction (“Preliminary Instruction 8”):
Aiding, Inducing, or Causing a crime, I.C. 35-41-2-4
A person who knowingly or intentionally aids, induces, or causes another person to commit Auto Theft is guilty of Auto Theft, even though he does not personally participate in each act constituting Auto Theft.
A person may be convicted of Auto Theft by knowingly aiding, inducing, or causing another to commit Auto Theft, even if the other person has not been prosecuted for, has not been convicted of, or has been acquitted of Auto Theft.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 3 of 7 In order to commit Auto Theft by aiding, inducing or causing another to commit Auto Theft, a person must have knowledge that he is aiding, inducing, or causing the commission of Auto Theft. To be guilty, he does not have to personally participate in the crime nor does he have to be present when the crime is committed. Merely being present at the scene of the crime is not sufficient to prove that he aided, induced, or caused the crime. Failure to oppose the commission of the crime is also insufficient to prove aiding, inducing or causing another to commit the crime. But presence at the scene of the crime and/or failure to oppose the crime’s commission are factors which may be considered in determining whether there was aiding, inducing, or causing another to commit the crime.
(App. 35).
[7] On the day of Allred’s jury trial, the trial court asked if there were any
objections to the preliminary jury instructions. Allred’s counsel objected to the
inclusion of Preliminary Instruction 8, stating, “I would object primarily
because its been presented to me without any ample time to prepare my case or
my defense with the Defendant on this particular . . . instruction here. I feel
that the . . . Defendant is being unfairly . . . and unjustly treated by having to
now defend from a different direction and I would ask that the instruction be
removed.” (Tr. 39-40). The trial court overruled the objection and gave the
instruction.
[8] At trial, Karst testified that while she was the individual who took the car off
the car lot, Allred was aware of and actively participated in the theft of the car.
Karst testified, in relevant part, as follows:
[State]: Did [Allred] know that you were planning to steal the car?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 4 of 7 [Karst]: Yes.
[State]: Did you discuss it with him prior to going to [the hardware store]?
[Karst]: Yes.
***
[State]: Did you guys talk about stealing the car prior to even going to the car lot?
[State]: Why was he making the key then?
[Karst]: So I could go back later and take [the car].
(Tr. 111).
[9] Allred also testified and offered testimony contrary to Karst. He testified that
he had no knowledge of the auto theft, did not participate in the auto theft, and
that Karst alone was responsible for stealing the car. Allred also admitted that
he had a copy of the key made. During closing arguments, Allred’s defense was
twofold. First, he argued that Karst alone was responsible for stealing the car.
Second, he argued that he did not knowingly or intentionally aid, induce, or
cause Karst to steal the car. The jury subsequently found Allred guilty of auto
theft, and he admitted to being an habitual offender. The trial court then
sentenced Allred to two and one-half (2½) years for the auto theft conviction
and enhanced the sentence by four (4) years for being an habitual offender,
resulting in an aggregate sentence of six and one-half (6½) years. Allred now
appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 5 of 7 Discussion
[10] Allred argues that the trial court erred when it gave Preliminary Instruction 8.
We afford trial courts broad discretion in the manner of instructing a jury, and
we review such decisions only for an abuse of discretion. Hayden v. State, 19
N.E.3d 831, 838 (Ind. Ct. App. 2014), reh’g denied, trans. denied. When
reviewing a jury instruction on appeal, we look to: (1) whether the tendered
instruction correctly states the law; (2) whether there is evidence in the record to
support giving the instruction; and (3) whether the substance of the proffered
instruction is covered by other instructions. Id. We will reverse a conviction
only where the appellant demonstrates that an error in the jury instructions
prejudiced his substantial rights. Id. Further, we note that the purpose of jury
instruction 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. Id.
[11] Here, Allred concedes that the “jury instruction properly states the law[.]”
(Allred’s Br. 10). He also does not argue that the evidence in the record did not
support giving the jury instruction or that the substance of the instruction was
covered by other instructions. Rather, Allred contends that “he was not
afforded the opportunity to proffer a reasonable defense and his substantial
rights were prejudiced by allowing this instruction.” (Allred’s Br. 7).
[12] To the extent that Allred argues that he was not able to present a reasonable
defense, our review of the record reveals otherwise. Allred testified on his own
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 6 of 7 behalf and put forward the defense that he had no knowledge of the auto theft,
did not participate in the auto theft, and that Karst alone was responsible for
stealing the car. Allred states that prior to the inclusion of Preliminary
Instruction 8, “[he] had [a] meaningful opportunity to prepare a defense,
namely that Ms. Karst took the vehicle instead of him, one that he had prepared
to testify to, and did testify to at trial.” (Allred’s Br. 10). However, on appeal,
Allred has failed to explain what his defense would have been or how the trial
court’s preliminary instruction substantially prejudiced his right to present a
defense. Indeed, he makes broad assertions about needing time to “change[]
the manner in which he had to defend his case” but identifies no particular
action he was precluded from taking due to a lack of time. (Allred’s Br. 11).
Although the right to present a defense, which includes the right to present the
defendant’s version of the facts, is of the utmost importance, it is not absolute.
Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). Despite Allred’s claims, we
find that he was able to present a defense. Here, Allred presented his version of
the facts when he testified that he did not aid Karst in auto theft. As a result,
the trial court did not abuse its discretion in giving Preliminary Instruction 8.
[13] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1538| April 11, 2019 Page 7 of 7