Jeremy Nathan Wilson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 09 2020, 10:31 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel I. Hageman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Nathan Wilson, April 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2156
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable William J. Hughes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D03-1905-F6-4117
Bailey, Judge.
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Case Summary
[1] Jeremy Nathan Wilson (“Wilson”) was convicted of Domestic Battery
Resulting in Moderate Bodily Injury, as a Level 6 felony,1 and adjudicated a
habitual offender.2 Wilson appeals, arguing that the failure to give a specific
type of jury instruction on unanimity amounted to fundamental error.
[2] We affirm.
Facts and Procedural History
[3] On May 29, 2019, Wilson and his brother showed up at an apartment rented to
Danielle Fenters (“Fenters”), whom Wilson had dated. While Wilson’s brother
waited in a car outside, Wilson—who had been drinking alcohol—entered the
apartment. Wilson yelled at Fenters and became violent. After throwing an
object at a television, Wilson cornered Fenters and began hitting her. Wilson
bit Fenters on the back. He dragged Fenters by her hair. At one point, Wilson
asked Fenters to retrieve a knife. Fenters complied. Wilson then tried to stab
Fenters. He slashed open cushioning on a couch and a recliner. Eventually,
Wilson held onto Fenters near the open apartment door. Fenters threw her
weight against Wilson, causing them to tumble down a flight of stairs. Fenters
ran outside and asked Wilson’s brother for a ride. Fenters then called someone
1
Ind. Code § 35-42-2-1.3(a)(1), (b)(3).
2
I.C. § 35-50-2-8.
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from work, who picked up Fenters and brought her to the hospital. Fenters
received three stitches on her chin. Her forehead was swollen and she had
several abrasions, a bite mark on her back, and a bent fingernail. The police
were contacted, and Wilson was found inside the apartment with a fresh scrape.
[4] The State filed a multicount information against Wilson and alleged that
Wilson is a habitual offender. A jury trial was held in July 2019. An initial
guilt phase concerned two counts: (1) Domestic Battery Resulting in Moderate
Bodily Injury, as a Level 6 felony; and (2) the lesser-included offense of
Domestic Battery, as a Class A misdemeanor.3 The court instructed the jury—
without objection from Wilson—and the jury found Wilson guilty of both
offenses. Upon the State’s request, the trial court dismissed the only remaining
count. The court then held a jury trial on the enhancement, with the jury
determining that Wilson is a habitual offender. The trial court later merged the
misdemeanor count with the felony count. It ultimately sentenced Wilson to
two and one-half years for the felony with a separate six-year enhancement.
[5] Wilson now appeals.
Discussion and Decision
[6] Wilson argues that the jury was not adequately instructed on jury unanimity.
Because Wilson did not raise this issue in an objection, he has waived the
3
I.C. § 35-42-2-1.3(a)(1).
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argument and we review only for fundamental error. See Batchelor v. State, 119
N.E.3d 550, 559 (Ind. 2019). Under this standard, we afford relief only if the
error “‘made a fair trial impossible’ or if it clearly and blatantly violated basic
principles of due process resulting in ‘undeniable and substantial potential for
harm.’” Id. (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)).
[7] In Indiana, a verdict in a criminal case must be unanimous. Fisher v. State, 291
N.E.2d 76, 82 (1973). Although there must be jury unanimity “as to the
defendant’s guilt,” jury unanimity “is not required as to the theory of the
defendant’s culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006).
Moreover, certain cases present problems with jury unanimity. See Baker v.
State, 948 N.E.2d 1169, 1178 (Ind. 2011). For example, in Baker, the defendant
was charged with a single count of child molestation with respect to each
victim, but the jury heard evidence of multiple distinct acts of molestation
concerning each victim. Id. at 1177. In resolving Baker, the Indiana Supreme
Court recognized that where “evidence is presented of a greater number of
separate criminal offenses than the defendant is charged with,” a basic
unanimity instruction is insufficient. Id. at 1175. “This is because, absent a
more particular instruction, the jury could unanimously agree that the
defendant was guilty, yet, in doing so, rely on different acts in evidence.”
Benson v. State, 73 N.E.3d 198, 202 (Ind. Ct. App. 2017), trans. denied. Put
differently, “the State could point to multiple, separate criminal acts and the
jury could convict, despite it being divided about which acts occurred.” Id. To
remedy this issue, the Baker Court held that
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[t]he State may in its discretion designate a specific act (or acts)
on which it relies to prove a particular charge. However if the
State decides not to so designate, then the jurors should be
instructed that in order to convict the defendant they must either
unanimously agree that the defendant committed the same act or
acts or that the defendant committed all of the acts described by
the victim and included within the time period charged.
Baker, 948 N.E.2d at 1177.
[8] Here, the court gave a general unanimity instruction—not the specific
instruction identified in Baker. Wilson argues that the specific instruction was
required. In so arguing, he directs us to a jury instruction on the elements of
Domestic Battery Resulting in Moderate Bodily Injury:
Before you may convict the Defendant, the State must have
proved the following elements beyond a reasonable doubt:
1. The Defendant
2. touched Danielle Tomi Fenters
3. a family or household member
4. in a rude, angry or insolent manner
5. by striking or punching or scratching or biting
6. resulting in moderate bodily injury to Danielle Tomi
Fenters.
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App. Vol. 2 at 87. Wilson also points out that a preliminary jury instruction
referred to allegations of moderate bodily injury through “laceration requiring
stitches or scratches or bleeding or swelling or redness.” Id. at 62.
[9] Wilson focuses on disjunctive language in the instructions, arguing that the jury
could have found him guilty “while remaining divided as to whether he
punched or struck or scratched or bit Fenters.” Br. of Appellant at 12. He also
asserts that the jury could have found him guilty “while being divided as to
which of the disjunctively listed injuries Fenters sustained or whether those
injuries rose to the level of moderate bodily injury.” Id. Wilson contends that
“some jurors could have agreed that Wilson scratched Fenters resulting in
redness while others disputed that redness rose to the level of moderate bodily
injury and instead relied on other acts resulting and [sic] other injuries to convict
Wilson.” Id. at 12-13. Wilson makes similar arguments about disjunctive
language in instructions concerning the lesser-included offense of Domestic
Battery. Wilson ultimately asserts that the trial court failed to give “an
adequately detailed” instruction on jury unanimity. Id. at 12.
[10] “[T]he State is permitted to ‘present[] the jury with alternative ways to find the
defendant guilty as to one element.’” Baker, 948 N.E.2d at 1175 (alteration in
original) (emphasis removed) (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind.
1996)). When the State does so, the concerns identified in Baker are not present
because jury unanimity is not required as to the theory of the defendant’s
culpability. See id. We therefore disagree that a Baker type of instruction was
required. In any case, even if we assume that the unanimity instruction was
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deficient, this type of error is harmless where—as here—the case (1) turned
largely on whether the jury found the victim to be credible and (2) the jury
resolved the basic credibility dispute against the defendant. See id. at 1179; see
also Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015), trans. denied. Thus,
even assuming error, Wilson has not demonstrated fundamental error.
[11] Affirmed.
Crone, J., and Altice, J., concur.
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