Vaidik, CJ.
Under Indiana Code section 35-37-2-4(a), a trial court is required to give the jury an admonishment limiting juror discussions of the case (1) “in the preliminary instruction,” (2) “before separating for meals,” and (3) “at the end of the day.” …
In August 2017, the State charged Rivera with Level 6 felony auto theft and Class A misdemeanor theft. A jury trial was held on June 13, 2018. The judge swore in the jurors at 12:09 p.m. and then read sixteen preliminary instructions. …
At 12:23 p.m., immediately after reading the preliminary instructions, the judge excused the jury for lunch. The judge did not repeat the admonishment limiting juror discussions of the case, and Rivera did not ask for it to be repeated. After the jury returned from lunch, counsel gave opening statements and presented evidence. Counsel then reviewed and approved final instructions, which were read to the jury. … The jury found Rivera guilty of auto theft but not guilty of theft.
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Rivera first contends that the trial court committed fundamental error by not repeating its admonishment limiting juror discussions of the case before excusing the jury for lunch. …
… The State responds that because the jury was excused for lunch immediately after the preliminary instructions were given, the “in the preliminary instruction” and “before separating for meals” requirements of Section 35-37-2-4(a) were both satisfied by the single admonishment. …
We agree with the State. … Where, as here, there are no intervening proceedings between the reading of the preliminary instructions and the jury being excused for lunch, trial courts are not required to give the admonishment required by Section 35-27-2-4(a) a second time. Accordingly, the judge did not err.
Next, Rivera contends that the trial court should have given final instructions on the credibility of witnesses and the manner of weighing testimony. He is correct. Indiana Jury Rule 26(a) provides, in relevant part, that “the court shall read appropriate final instructions, which shall include at least the following: (1) the applicable burdens of proof; (2) the credibility of witnesses; and, (3) the manner of weighing the testimony received.” While the judge instructed the jury on the burden of proof during final instructions, see Appellant’s App. Vol. II p. 104, she did not instruct it on the credibility of witnesses and the manner of weighing testimony.
That said, because Rivera did not raise this issue below, he bears the heavy burden on appeal of establishing fundamental error. He has failed to do so. When considering whether an instructional error amounts to fundamental error, we consider the instructions as a whole and in reference to each other. Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). During preliminary instructions, the judge instructed the jury on the credibility of witnesses and the manner of weighing testimony. In addition, Preliminary Instruction 3 directed the jury “to consider all the instructions together,” and Final Instruction 1 directed the jury “to consider all of the jury instructions (both preliminary and final) together.” … The trial court did not commit fundamental error.
Affirmed.
Kirsch, J., and Altice, J., concur.