MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 16 2020, 6:48 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel Hageman Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jamar Green, March 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2056 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff Judge Trial Court Cause No. 49G21-1705-F4-17565
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 1 of 7 Case Summary [1] Jamar Green appeals his conviction, following a jury trial, for level 4 felony
unlawful possession of a firearm by a serious violent felon (“SVF”). He
contends that the trial court committed fundamental error when instructing the
jury. Concluding that Green has not met his burden to establish fundamental
error, we affirm.
Facts and Procedural History [2] On May 10, 2017, Indianapolis Metropolitan Police Department (“IMPD”)
officers and emergency medical technicians (“the EMTs”) were dispatched to
the parking lot of an apartment complex due to reports of a possible drug
overdose. Upon arrival, the EMTs found a vehicle occupied by Green and two
females, E.E. and A.P.; Green and E.E. were unconscious, and A.P. was
semiconscious. The EMTs removed Green and E.E. from the vehicle and
administered Narcan in an attempt to counteract the effects of the suspected
overdoses. Shortly after the EMTs removed Green and E.E. from the car,
IMPD Officers Jade Pierson and Larry Lanigan arrived on the scene. Officer
Pierson spoke with A.P. while Officer Lanigan attempted to retrieve
identification from Green and E.E. When Officer Lanigan approached Green,
who was lying on the pavement next to the vehicle, he observed a knife in the
waistband of Green’s pants. As Officer Lanigan was removing the knife from
Green’s waistband, he also observed a silver semiautomatic handgun next to
the knife in the waistband. Officer Lanigan also removed the handgun from
Green’s waistband as a precaution before Green was placed in the ambulance
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 2 of 7 to be transported to the hospital. The handgun was loaded and had a round in
its chamber.
[3] The State charged Green with level 4 felony unlawful possession of a firearm by
an SVF. The State subsequently added a habitual offender sentence
enhancement. Four days after Green was arrested, he called E.E. from the
Marion County Jail. Green told E.E. that she needed to get in touch with A.P.
and essentially get A.P. to claim that she “put the gun on him” because
otherwise he would be “facing a lot, a lot, a lot of time.” State’s Ex. 5. Green
explained that “she got to do that. Just tell her to get that permit real quick.”
Id. E.E. assured Green, “I’m gonna tell her when I see her. I’m trying to get a
hold of her b*tch ass.” Id. Green told E.E. to “try to make sure she come
down here, man. Make sure she do that, okay?” Id.
[4] In bifurcated proceedings, a jury found Green guilty of unlawful possession of a
firearm. 1 Green then admitted to the habitual offender enhancement in
exchange for a fixed term of six years executed on the enhancement, with
placement left to the trial court’s discretion.
[5] A sentencing hearing was held on August 2, 2019. The trial court sentenced
Green to an aggregate term of fourteen years, with eight years executed in the
1 The parties stipulated that Green was an SVF pursuant to Indiana Code Section 35-47-4-5. Tr. Vol. 2 at 6, 119, 166.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 3 of 7 Department of Correction, two years in community corrections, and four years
suspended, two of which to be served on probation. This appeal ensued.
Discussion and Decision [6] Green argues that the trial court erroneously instructed the jury regarding the
definition of actual possession. We generally review a trial court’s jury
instruction for an abuse of discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind.
2012). However, Green concedes that he failed to object to the challenged jury
instruction, and therefore he claims that the alleged error was fundamental.
[7] The failure to object to a jury instruction results in waiver on appeal, unless
giving the instruction was fundamental error. Barthalow v. State, 119 N.E.3d
204, 211 (Ind. Ct. App. 2019). An error is fundamental if it clearly and
blatantly violated basic principles of due process resulting in “undeniable and
substantial potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind.
2019) (citation omitted). In reviewing a particular jury instruction for
fundamental error, we need not reverse unless the instructions as a whole—the
jury charge—misled the jury on the applicable law. Id. Fundamental error is
an “extremely narrow exception to the waiver rule,” and a defendant “bears the
heavy burden of showing that a fair trial was impossible.” Harris v. State, 76
N.E.3d 137, 139 (Ind. 2017).
[8] Here, the trial court gave the jury a preliminary instruction regarding actual
possession that provided as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 4 of 7 The word “possess” means to own or exert control over.
A person who knowingly has direct physical contact of a thing at a given time is then in actual possession of it.
Appellant’s App. Vol. 2 at 129 (emphasis added). Indiana Pattern Criminal
Jury Instruction 14.306 follows this language, but instead of “contact,” the
word “control” is used. Green argues that this deviation resulted in an
incorrect statement of law that was fundamentally erroneous. We disagree.
[9] As noted above, we look to each jury instruction in context and, pursuant to the
fundamental error standard of review, we need not reverse unless the
instructions as a whole misled the jury on the applicable law. Batchelor, 119
N.E.3d at 559. Here, the jury was twice instructed that the State was required
to prove that Green knowingly or intentionally possessed a firearm, Appellant’s
App. Vol. 2 at 137, and the jury was further properly instructed that to
“possess” something “means to own or exert control over.” Id. at 129; IND.
PATTERN CRIMINAL JURY INSTRUCTION 14.306. Although Green argues that
the erroneous use of the word “contact” in the challenged instruction’s
definition of actual possession invited the jury to focus solely on the fact of
physical contact rather than on actual physical control, the jury was specifically
instructed to “consider all the instructions together. Do not single out any
certain sentence or any individual point or instruction and ignore the others.”
Appellant’s App. Vol. 2 at 124.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 16 2020, 6:48 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel Hageman Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jamar Green, March 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2056 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff Judge Trial Court Cause No. 49G21-1705-F4-17565
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 1 of 7 Case Summary [1] Jamar Green appeals his conviction, following a jury trial, for level 4 felony
unlawful possession of a firearm by a serious violent felon (“SVF”). He
contends that the trial court committed fundamental error when instructing the
jury. Concluding that Green has not met his burden to establish fundamental
error, we affirm.
Facts and Procedural History [2] On May 10, 2017, Indianapolis Metropolitan Police Department (“IMPD”)
officers and emergency medical technicians (“the EMTs”) were dispatched to
the parking lot of an apartment complex due to reports of a possible drug
overdose. Upon arrival, the EMTs found a vehicle occupied by Green and two
females, E.E. and A.P.; Green and E.E. were unconscious, and A.P. was
semiconscious. The EMTs removed Green and E.E. from the vehicle and
administered Narcan in an attempt to counteract the effects of the suspected
overdoses. Shortly after the EMTs removed Green and E.E. from the car,
IMPD Officers Jade Pierson and Larry Lanigan arrived on the scene. Officer
Pierson spoke with A.P. while Officer Lanigan attempted to retrieve
identification from Green and E.E. When Officer Lanigan approached Green,
who was lying on the pavement next to the vehicle, he observed a knife in the
waistband of Green’s pants. As Officer Lanigan was removing the knife from
Green’s waistband, he also observed a silver semiautomatic handgun next to
the knife in the waistband. Officer Lanigan also removed the handgun from
Green’s waistband as a precaution before Green was placed in the ambulance
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 2 of 7 to be transported to the hospital. The handgun was loaded and had a round in
its chamber.
[3] The State charged Green with level 4 felony unlawful possession of a firearm by
an SVF. The State subsequently added a habitual offender sentence
enhancement. Four days after Green was arrested, he called E.E. from the
Marion County Jail. Green told E.E. that she needed to get in touch with A.P.
and essentially get A.P. to claim that she “put the gun on him” because
otherwise he would be “facing a lot, a lot, a lot of time.” State’s Ex. 5. Green
explained that “she got to do that. Just tell her to get that permit real quick.”
Id. E.E. assured Green, “I’m gonna tell her when I see her. I’m trying to get a
hold of her b*tch ass.” Id. Green told E.E. to “try to make sure she come
down here, man. Make sure she do that, okay?” Id.
[4] In bifurcated proceedings, a jury found Green guilty of unlawful possession of a
firearm. 1 Green then admitted to the habitual offender enhancement in
exchange for a fixed term of six years executed on the enhancement, with
placement left to the trial court’s discretion.
[5] A sentencing hearing was held on August 2, 2019. The trial court sentenced
Green to an aggregate term of fourteen years, with eight years executed in the
1 The parties stipulated that Green was an SVF pursuant to Indiana Code Section 35-47-4-5. Tr. Vol. 2 at 6, 119, 166.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 3 of 7 Department of Correction, two years in community corrections, and four years
suspended, two of which to be served on probation. This appeal ensued.
Discussion and Decision [6] Green argues that the trial court erroneously instructed the jury regarding the
definition of actual possession. We generally review a trial court’s jury
instruction for an abuse of discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind.
2012). However, Green concedes that he failed to object to the challenged jury
instruction, and therefore he claims that the alleged error was fundamental.
[7] The failure to object to a jury instruction results in waiver on appeal, unless
giving the instruction was fundamental error. Barthalow v. State, 119 N.E.3d
204, 211 (Ind. Ct. App. 2019). An error is fundamental if it clearly and
blatantly violated basic principles of due process resulting in “undeniable and
substantial potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind.
2019) (citation omitted). In reviewing a particular jury instruction for
fundamental error, we need not reverse unless the instructions as a whole—the
jury charge—misled the jury on the applicable law. Id. Fundamental error is
an “extremely narrow exception to the waiver rule,” and a defendant “bears the
heavy burden of showing that a fair trial was impossible.” Harris v. State, 76
N.E.3d 137, 139 (Ind. 2017).
[8] Here, the trial court gave the jury a preliminary instruction regarding actual
possession that provided as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 4 of 7 The word “possess” means to own or exert control over.
A person who knowingly has direct physical contact of a thing at a given time is then in actual possession of it.
Appellant’s App. Vol. 2 at 129 (emphasis added). Indiana Pattern Criminal
Jury Instruction 14.306 follows this language, but instead of “contact,” the
word “control” is used. Green argues that this deviation resulted in an
incorrect statement of law that was fundamentally erroneous. We disagree.
[9] As noted above, we look to each jury instruction in context and, pursuant to the
fundamental error standard of review, we need not reverse unless the
instructions as a whole misled the jury on the applicable law. Batchelor, 119
N.E.3d at 559. Here, the jury was twice instructed that the State was required
to prove that Green knowingly or intentionally possessed a firearm, Appellant’s
App. Vol. 2 at 137, and the jury was further properly instructed that to
“possess” something “means to own or exert control over.” Id. at 129; IND.
PATTERN CRIMINAL JURY INSTRUCTION 14.306. Although Green argues that
the erroneous use of the word “contact” in the challenged instruction’s
definition of actual possession invited the jury to focus solely on the fact of
physical contact rather than on actual physical control, the jury was specifically
instructed to “consider all the instructions together. Do not single out any
certain sentence or any individual point or instruction and ignore the others.”
Appellant’s App. Vol. 2 at 124.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 5 of 7 [10] Significantly, the jury was instructed to consider and construe the instructions
in the context of “all the evidence admitted during the trial[.]” Id. at 147. The
central evidentiary dispute during trial was not whether Green exerted physical
control over the handgun; it was whether he had done so knowingly or
intentionally. Indeed, Green’s counsel conceded during both opening and
closing statements that “possession” was “not an issue.” Tr. Vol. 2 at 96, 140.
Green conceded that he technically had both physical contact and control over
the gun found on his person but postulated that A.P., E.E., or some random
bystander had placed the gun in his waistband while he was unconscious.
Moreover, during deliberations, the jury requested to see any available camera
footage of the events as well as to rehear Green’s jailhouse phone call with
E.E., clearly indicating that the jury was focusing on the credibility of Green’s
theory that he unknowingly or unintentionally possessed the gun. We agree
with the State that the “fact that the gun was touching [Green’s] body was, in
terms of the particular facts of the case, neither here nor there.” Appellee’s Br.
at 14. Under the circumstances, we conclude that the instructions as a whole—
the jury charge—did not mislead the jury on the applicable law.
[11] Because Green has not met his burden to establish that the trial court’s
instruction of the jury made a fair trial impossible or clearly and blatantly
violated basic principles of due process resulting in undeniable and substantial
potential for harm, we find no fundamental error. Accordingly, we affirm his
conviction.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 6 of 7 [12] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2056 | March 16, 2020 Page 7 of 7