Malcolm R. DePriest, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
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
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.
and Procedural History
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
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.
App. Vol. 2 at 50. Neither party objected to the instruction.
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.
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 ...