Jenkins v. State , 1981 Ind. LEXIS 806 ( 1981 )

DeBRULER, Justice.

Appellant, Mark Jenkins, stands convicted of the crime of attempted criminal deviate conduct while armed, a class A felony, pursuant to Ind.Code § 35-42-4-2. Trial by jury took place in the Posey Circuit Court, resulting in a guilty verdict. He appeals alleging error in the manner in which the trial judge responded to jury questions during deliberation.

Three hours into deliberations, the jury returned into open court and through its foreperson asked the court for the meaning of a lesser included offense. The court then read all of the final instructions again to the jury.

Later the jury again returned to the courtroom and the jury foreperson inquired as to the meaning of sexual gratification. In response to this inquiry, the trial court modified the court’s Final Instruction 16 by adding an additional sentence at its end, and drafted a new instruction. Both these were then given to the jury over appellant’s objections..

When confronted with a question from a jury which has commenced deliberation, the challenge to the trial judge is to respond in a manner which accords with the legal requirements for final instructions and which is fair. The path is extremely hazardous for the court that would depart from the body of final instructions and do other than reread the final instructions in responding to jury questions. Such a departure will be warranted in only the most extreme circumstances. Brannum v. State, (1977) 267 Ind. 51, 366 N.E.2d 1180; Cameron v. State, (1979) Ind., 383 N.E.2d 1039. It must serve to amend the final instructions by adding a necessary 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. Hall v. State, (1856) 8 Ind. 439. Thus, it is only when the jury question coincides with an error or legal lacuna in the final instructions that a response other than rereading from the body of final instructions is permissible.

In responding to the jury’s inquiry regarding the meaning of sexual gratification, the court departed from the body of final instructions. Instruction No. 16 initially read as follows:

“The Court instructs you that Deviate Sexual Conduct means an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person.”

The court modified the instruction by adding the following sentence to it:

“Sexual gratification may or may not include ejaculation.”

He also gave an entirely new instruction which stated:

“Webster defines gratification as a source of gratification or pleasure.”

Instruction No. 16 as originally given to the jury was not erroneous. It utilized the term “sexual gratification” from the statute establishing the offense of criminal deviate conduct. The term has no special legal meaning as used in the statute, but is used in its ordinary sense. A jury of twelve would discern its meaning upon fair and open deliberation. There is no rule of law requiring the judge to instruct juries regarding the meaning of such common terms. The jury’s question regarding the meaning of sexual gratification did not coincide with an error or legal insufficiency in the final instructions, and it was therefore error for the trial court to depart from the body of final instructions in responding to the jury’s question.

The conviction is reversed and remanded for a new trial.

HUNTER, PRENTICE and PIVARNIK, JJ., concur. GIVAN, C. J., dissents with opinion.