David, J.
Before trial, Russell filed a motion requesting that the trial court completely bifurcate the trial on his SVF charge from the trial on his murder charge. Instead, over Russell’s objection, the trial court split Russell’s prosecution into two phases: phase one, where the jury determined whether Russell committed murder and whether he “unlawfully” possessed a firearm; and phase two, where the jury determined whether Russell committed felony possession of a firearm by a SVF and whether he was a habitual offender. Had the trial court fully bifurcated the trial on the SVF charge from the trial on the murder charge, the trial court would have avoided instructing the jury on the non-existing offense of “unlawfully” possessing a firearm.
As Russell argues, “unlawful possession of a firearm” is not a crime under the Indiana Code. Rather, the three elements given in the jury instruction said to comprise the “offense”—(1) the defendant did; (2) knowingly or intentionally; (3) possess a firearm—are three elements of the statutory offense of possession of a firearm by a SVF.1 [1 SVF status is the final element: “A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon.” Ind. Code § 35-47-4-5(c) (Supp. 2012).]
One of the purposes of bifurcation is to keep prior convictions away from the jury in their initial determination of guilt for the substantive crime charged. . . . Because the jury was not informed of Russell’s prior convictions during the first phase of his trial, this purpose of bifurcation has been met and Russell has not been prejudiced.
Russell also argues that instructing the jury on the non-existent offense of “unlawful possession of a firearm” was prejudicial because most jurors would know that possession of a firearm, by itself, is not a criminal offense. He reasons jurors would infer a second phase of trial. However, this argument was rejected in Williams v. State, where the Court of Appeals held that by bifurcating the defendant’s SVF trial so that the jury would consider knowing possession of a firearm and the defendant’s SVF status separately, the trial court “avoid[ed] identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.” 834 N.E.2d 225, 228 (Ind. Ct. App. 2005). Because the trial court instructed the jury to consider whether Russell had “unlawfully” possessed a firearm and whether Russell was a SVF in two separate phases of trial, this argument fails.
Further, Russell claims that asking the jury to simultaneously determine whether he committed the non-existent offense of “unlawfully” possessing a firearm and whether he committed murder undermined his self-defense claim. If the defendant is committing another crime, immediately and causally connected to the defensive action, then the defendant cannot claim self-defense. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). However, as the Court of Appeals observed,
[t]he trial court expressly informed the jury in instruction number 10:
As to Count II [“unlawful possession of a firearm”], if the jury determines that the Defendant lawfully exercised his right to self defense as to the allegations contained within Count I [murder], the Defendant may not be convicted of Unlawful Possession of a Firearm as the jury would have determined that the Defendant’s usage of the gun was, in fact, lawful.
However, should the jury conclude that the Defendant is not guilty of Count I for some reason other than self defense, the jury may then continue to deliberate on whether the State has proven the elements of Count II beyond a reasonable doubt.
Russell, 981 N.E.2d at 1286. Because this instruction informed the jury that Russell could not be “convicted” of “unlawful” possession of a firearm if they determined that he had lawfully exercised his right to self-defense, Russell’s self-defense claim was not undermined by the jury’s simultaneous consideration of both charges.
We affirm the trial court’s partial bifurcation in this instance. However, as the trial judge did here, we urge trial judges to exercise caution to ensure there is no prejudice to the defendant.
Dickson, C.J., Rucker, Massa, and Rush, J.J., concur.