Weissmann, J.
Andrew McQuinn fired a handgun in the parking lot of his apartment complex as a police officer arrived to investigate a report of domestic violence by McQuinn. The gunfire earned him an attempted murder charge. McQuinn was also charged with unlawful possession of a firearm by a serious violent felon (SVF), domestic battery, theft of a handgun, and carrying a handgun without a license.
Amid disputed evidence as to McQuinn’s intent in firing the gun, the trial court instructed the jury that the direction of the gunfire could be “substantial evidence” of McQuinn’s intent to kill. Under the specific facts of this case, we find this instruction invaded the province of the jury to determine the weight of the evidence and undermined McQuinn’s defense that he did not have the specific intent required for attempted murder. We also find that McQuinn did not personally waive his right to a jury trial before he purportedly pleaded guilty to unlawful possession of a firearm by a SVF. We do not find, however, that McQuinn’s dual convictions for carrying a handgun without a license and unlawful possession of a firearm by a SVF constitute two punishments for the same criminal act.
Accordingly, we reverse McQuinn’s convictions for attempted murder and unlawful possession of a firearm by a SVF and remand for a new trial on those charges. We affirm his remaining convictions.
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McQuinn appeals his conviction for attempted murder, arguing that the trial court erred in instructing the jury on that charge. The crime of attempted murder occurs when a person, acting with the specific intent to kill, engages in conduct that constitutes a substantial step toward killing another person. Ind. Code §§ 35-42-1-1(1), -41-5-1(a). McQuinn challenges one of the jury instructions on specific intent, which stated, in pertinent part: Discharging a weapon in the direction of a victim can be substantial evidence from which the jury could infer intent to kill. Tr. Vol. III, p. 105; App. Vol. II, p. 95.
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McQuinn asserts several errors with the challenged instruction, including that it invaded the province of the jury by unduly emphasizing the direction in which he fired the gun. We find this issue dispositive.
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“[A jury] instruction that invades this province by inappropriately emphasizing certain facts is erroneous and misleads the jury.” Id.; accord Ludy, 784 N.E.2d at 461 (“Instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved.”).
For instance, in Dill v. State, 741 N.E.2d 1230 (Ind. 2001), our Supreme Court rejected the following instruction, finding it unduly emphasized the defendant’s flight after an alleged burglary: “Flight and other actions calculated to hide a crime, though not proof of guilt, are evidence of consciousness of guilt and are circumstances which may be considered by you along with other evidence.” Id. at 1232.
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Like the instructions in Dill, Ludy, and Ham, McQuinn’s challenged instruction unnecessarily emphasized a particular evidentiary fact—the direction in which he fired the gun. Moreover, the instruction amplified the potential weight of this fact by stating it could be “substantial evidence” of McQuinn’s intent to kill.
We further observe that the challenged instruction is derived from case law addressing an appellate issue—sufficiency of the evidence—not the facts to be determined by a jury at trial. …
Our Supreme Court has long recognized that “[a]ppellate review of the sufficiency of the evidence . . . will ‘rarely, if ever,’ be an appropriate basis for a jury instruction[] because the determination is fundamentally different.” Keller, 47 N.E.3d at 1208 (quoting Garfield v. State, 74 Ind. 60, 64 (1881)). “A trial court jury is not reviewing whether a conviction is supported[; it] is determining in the first instance whether the State proved beyond a reasonable doubt that a defendant committed a charged crime.” Id. (quoting Ludy, 784 N.E.2d at 461).
The challenged instruction exemplifies the pitfall noted by the Supreme Court. In the sufficiency context, “substantial evidence” is generally defined as “[e]vidence that a reasonable mind could accept as adequate to support a conclusion.” Substantial Evidence, Black’s Law Dictionary (11th ed. 2019) (emphasis added). But a jury is composed of laypersons. We therefore consider the plain and ordinary meaning of the word “substantial” in the context of a jury instruction.
In this case, the jury was instructed that “[d]ischarging a weapon in the direction of a victim can be substantial evidence from which the jury could infer intent to kill.” Tr. Vol. III, p. 105; App. Vol. II, p. 95. This instruction unduly emphasized the direction in which McQuinn fired the gun and encouraged the jury to give it considerable weight—all at the expense of conflicting evidence. Because the instruction invaded the province of the jury, it was improper.
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Because we are not completely confident the jury would have found McQuinn guilty had it been properly instructed, we must conclude that the challenged instruction prejudiced McQuinn’s substantial rights. We therefore reverse his conviction for attempted murder and remand for a new trial on that charge.
McQuinn appeals his conviction for unlawful possession of a firearm by a SVF, arguing that the trial court erred in accepting his guilty plea on that charge because he never waived his right to jury trial. We agree.
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Nowhere in this colloquy did McQuinn personally communicate a desire to waive his right to jury trial. The State contends McQuinn’s personal waiver was not necessary because he had just experienced a jury trial, “understood” his rights, and affirmatively indicated that he wished to plead guilty. Appellee’s Br. p. 27. The law, however, requires more. See Horton, 51 N.E.3d at 1158-59 (declining to make exception to personal waiver requirement in second phase of bifurcated trial based on defendant’s experience with jury trial in first phase); Saylor v. State, 55 N.E.3d 354, 365-67 (Ind. Ct. App. 2016) (holding defendant did not personally waive right to jury trial by pleading guilty in second phase of bifurcated trial after defense counsel advised court that defendant was aware of right to jury trial).
We reverse McQuinn’s conviction for Level 4 felony unlawful possession of a firearm by a SVF and remand for a new trial on that charge.
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In summary, we reverse McQuinn’s convictions for attempted murder and unlawful possession of firearm by a SVF, and we remand this case to the trial court for a new trial on those charges. We affirm McQuinn’s remaining convictions.
Reversed in part, affirmed in part, and remanded.
Robb, J., and Pyle, J., concur.