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Depriest v. State

Court of Appeals of Indiana

October 24, 2018

Malcolm R. DePriest, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Vanderburgh Circuit Court Trial Court Cause No. 82C01-1712-F4-7397 The Honorable David D. Kiely, Judge The Honorable Michael J. Cox, Magistrate

          ATTORNEYS FOR APPELLANT Scott L. Barnhart Brooke Smith Keffer Barnhart LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] Malcolm R. DePriest appeals his convictions for level 4 felony unlawful possession of a firearm by a serious violent felon ("SVF") and class A misdemeanor resisting law enforcement. He argues that the trial court committed fundamental error by instructing the jury that there would be a second phase of the trial if the jury found beyond a reasonable doubt that he knowingly or intentionally possessed a firearm. Finding no error, we affirm.

         Facts and Procedural History

         [¶2] On September 28, 2017, an Evansville police officer responded to a report of an incident in progress involving a man with two guns. The officer saw DePriest exit a building, get on a bicycle, and ride away. The officer activated his emergency lights and followed DePriest. DePriest looked back twice at the officer. The officer briefly activated his siren twice. DePriest started peddling faster. The officer saw DePriest take a handgun from his waistband and throw it. DePriest was eventually stopped and arrested, and the handgun was recovered.

         [¶3] The State charged DePriest with level 4 felony unlawful possession of a firearm by a SVF and class A misdemeanor resisting law enforcement and alleged that he was a habitual offender. At trial, the trial court provided the jury with the following preliminary instruction:

In Count 1, the Defendant is charged with Possession of a Firearm in Violation of Indiana Code. The trial will be in two (2) stages. In the first stage, there will be a trial on the issue of whether the Defendant knowingly or intentionally possessed the firearm as charged in Count 1. If you find beyond a reasonable doubt that the Defendant knowingly or intentionally possessed the firearm as charged in Count 1, there will be a second stage of the trial. In the second stage, there will be a trial of the issue whether the Defendant committed a crime by possessing a firearm.

         Appellant's App. Vol. 2 at 50. Neither party objected to the instruction.

         [¶4] The jury found that DePriest knowingly or intentionally possessed a firearm and found him guilty of resisting law enforcement. DePriest admitted that he was a SVF and a habitual offender. The trial court sentenced DePriest to six years for unlawful possession of a firearm by a SVF, with a seven-year enhancement for being a habitual offender and a concurrent one-year sentence for resisting law enforcement. This appeal ensued.

         Discussion and Decision

         [¶5] DePriest asserts that the preliminary instruction on bifurcation constituted fundamental error. We observe that "[t]he manner of instructing a jury is left to the sound discretion of the trial court. We will not reverse the trial court's ruling unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the ...


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