Marquell M. Jackson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Vanderburgh Circuit Court The Honorable Kelli E.
Fink, Magistrate Trial Court Cause No. 82C01-1510-F1-6686
Attorney for Appellant Matthew J. McGovern Anderson, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
F. Roebel Supervising Deputy Attorney General Indianapolis,
of the Case
Marquell M. Jackson appeals his convictions and sentence,
following a jury trial, for burglary, as a Level 1 felony;
attempted robbery, as a Level 2 felony; four counts of
attempted robbery, as Level 3 felonies; two counts of
aggravated battery, as Level 3 felonies; and for being found
to have been a member of a criminal gang, a sentencing
enhancement. Jackson raises seven issues for our review, but
we address only the following five issues:
1. Whether the trial court committed fundamental error when
it permitted the State to amend the charge for the criminal
gang enhancement such that the charge no longer stated a
2. Whether two of Jackson's convictions violated
Indiana's prohibitions against double jeopardy.
3. Whether the trial court abused its discretion when it
admitted into evidence phone calls Jackson had made from
4. Whether the trial court committed fundamental error when
it instructed the jury on accomplice liability.
5. Whether the State presented sufficient evidence to support
Jackson's conviction for burglary, as a Level 1 felony.
We hold that the trial court committed fundamental error when
it permitted the State to amend the charge on the criminal
gang enhancement such that the charge no longer stated an
offense under Indiana law. We also hold that two of
Jackson's convictions violate Indiana's prohibitions
against double jeopardy because they were enhanced by the
same bodily injury as Jackson's conviction for burglary,
as a Level 1 felony. In light of those holdings, we reverse
Jackson's criminal gang enhancement and remand with
instructions for the trial court to vacate that enhancement.
We also reverse the two of Jackson's convictions that are
based on the same bodily injury as his conviction for
burglary, as a Level 1 felony, and we remand with
instructions for the court to enter judgment of conviction on
lesser-included offenses on those counts. And we instruct the
court to resentence Jackson in accordance with this
opinion.On the remaining issues, we affirm.
and Procedural History
In October of 2015, Jeremy Herbert lived in a second-floor
apartment above the 711 Tavern in Evansville. Herbert's
apartment was one of two second-floor apartments above the
711 Tavern; one couldaccess those two apartments from the
street by gaining entry through an exterior door that Herbert
could remotely open. Herbert also had video surveillance on
that door. Once through that door, visitors would go upstairs
to a hallway common to both apartments. One apartment had a
door off the hallway; Herbert's apartment had a doorframe
in which he had hung a sheet to "act as the
doorway." Tr. Vol. IV at 153. Logan Orth stayed
intermittently at Herbert's apartment and sold marijuana
out of the apartment.
On October 25, Jackson and his friend, Diego Thomas, learned
that Orth had one-half pound of marijuana in Herbert's
apartment. Jackson and Thomas decided that they would go to
Herbert's apartment "[t]o rob them" of that
marijuana. Id. at 9. However, upon approaching the
exterior door, they "saw [the] camera above the
door" and abandoned their plan. Id.
The next day, Jackson and Thomas again decided to rob Orth at
Herbert's apartment. This time, Jackson and Thomas
obtained the assistance of Jarvice Sears, Corey Cain, and
O'Neill Bruin to help them carry out their plan. The five
confederates acquired two firearms and some face masks to use
in the commission of the invasion. They agreed to equally
split any marijuana and money they seized from Orth.
Shortly before 9:00 p.m., the group approached the exterior
door to Herbert's apartment and observed the surveillance
camera. They then "debate[d]" among themselves
"whether . . . [to] keep on going . . . or just
leave." Id. at 17. Jackson advocated for
continuing forward, and, after about five minutes of
discussion, the cohort agreed. Thomas then "pulled the
camera out [of] the wall, " the five men went through
the exterior door,  they "pulled back" the sheet to
Herbert's apartment, and they entered the apartment.
Id. at 18-19.
At that time, about ten people, including Orth and Herbert,
were inside the apartment "smoking blunts."
Id. at 156. The five intruders demanded the
occupants' marijuana and money. Sears pulled out a
firearm. Jackson told the occupants that Sears
"ain't playing with you all." Id. at
25. Nonetheless, Orth also pulled out a firearm, and a
gunfight ensued. Sears shot Orth twice and Orth shot Sears
once. The confederates then fled the apartment. On the way
out, Cameron Kendall, a resident in the other upstairs
apartment, came into the hallway. Sears shot Kendall in the
stomach. Kendall, a former sniper for the United States Army,
returned fire at the confederates, striking Sears once,
Thomas once, and Bruin twice.
Jackson and his cohort made their way outside, but Sears
collapsed shortly after and Thomas remained with him until
police arrived. The other three eventually drove to a
hospital and were arrested thereafter. No one died from the
While in prison, Jackson made several phone calls that the
State recorded. The State advised Jackson prior to the phone
calls that it would record them and that they could be used
against him at trial. Undeterred, in one call Jackson stated
that "[t]he only thing they could stick on me is that
burglary. Now, I can get that dropped down to where I can go
to the Safe House and get House Arrest, so I'll plead out
to that . . . ." Tr. Vol. III at 108. In another call,
Jackson again commented that he could be convicted of
burglary. Following several inaudible comments relating to
his alleged participation in the events at the apartment,
Jackson then stated that "[w]hen everything started
happening I ran because I didn't know, I knew but I
didn't know, so when I seen what I didn't know, then
I ran." Id. at 111.
The State charged Jackson with sixteen offenses and a
criminal gang enhancement. The State's original charge of
the criminal gang enhancement tracked the language of Indiana
Code Section 35-50-2-15(b) (2015) and stated, in relevant
part, that, "on October 26, 2015, [Jackson] knowingly or
intentionally was a member of a criminal gang while
committing the underlying offense." Appellant's App.
Vol. II at 56. However, three days before Jackson's
trial, the State amended that language to instead allege that
Jackson "was a known member of a criminal gang while
committing the underlying felony offense." Id.
at 97. Jackson did not object to the State's amendment of
the charging information on the criminal gang enhancement.
The trial court ordered Jackson's ensuing jury trial to
be bifurcated between the substantive offenses and the
criminal gang enhancement. During the first phase, numerous
witnesses, including some of his confederates, testified and
described the events of October 26, 2015. The State also
introduced, over his objections, Jackson's jailhouse
phone calls as described above. The jury found Jackson guilty
Jackson's jury trial then proceeded to the second phase
on the criminal gang enhancement allegation. In his
introductory remarks to the jury at the start of that
proceeding, Jackson's attorney stated:
I'll keep it straight to the point on this one. The
Court's instruction number 2 says that the State has
alleged that Mr. Jackson was a known member of a gang while
committing the underlying felony offenses and, not or, and
Mr. Jackson committed the felony offenses at the direction of
or in affiliation with a criminal gang. Number 1 was a
known member. Number 2, at the direction or an
affiliation. Keep those two factors in mind when you
listen to the evidence. I don't think it will be
sufficient to convince you beyond a reasonable doubt . . .
Tr. Vol. V at 164-65 (emphases added). The State then called
Thomas as a witness, and he redescribed the events of October
26, 2015. In a short cross-examination, Jackson's
attorney questioned Thomas as follows:
Q . . . you['d] consider yourself a friend of