Reversal reinstates firearm enhancement in aggravated battery

An appellate panel on Friday reinstated a firearm enhancement against a man who was convicted of aggravated battery, remanding for a trial on the enhancement while cautioning the state about “careless” oversight of criminal cases.

After a heated dispute after ordering his roommate to move out of the house, Samuel Vande Brake shot Tristan Fernandez in the chest. Vande Brake was subsequently charged with Level 3 felony aggravated battery, Level 5 felony battery by means of a deadly weapon, Level 5 felony battery resulting in serious bodily injury and Level 6 felony criminal recklessness.

A motion from the state to add a “use of firearm” sentence enhancement was granted, as was its later motion to add a count of Level 1 felony attempted murder. But when the state filed its proposed preliminary and final instructions, there was no mention of the firearm enhancement or bifurcation.

A jury ultimately found Vande Brake guilty of multiple counts but not guilty of attempted murder. However, immediately after the jury was excused, the state addressed the trial court, seeking to attach the firearm enhancement to the aggravated battery count, but the trial court dismissed the enhancement after noting the issue was never raised during the three-day trial.

The state subsequently filed a motion to correct error requesting that the trial court reinstate the firearm enhancement, but was denied. During sentencing, conviction was entered solely aggravated battery with Vande Brake’s other convictions vacated. He was sentenced to serve seven years executed in the Department of Corrections and two years suspended to probation.

But the Indiana Court of Appeals reversed in State of Indiana v. Samuel E. Vande Brake, 19A-CR-1772, finding the trial court abused its discretion in dismissing the firearm enhancement.

“Vande Brake argues that ‘[w]hile the State would have been entitled to a
bifurcated trial and a second phase following the jury’s verdict, it waived that procedure by failing to follow court rules in the preparation and conduct of the trial.’ In support of this proposition, Vande Brake relies
on the trial court’s Initial Hearing Order issued by the magistrate which, in part, stated that ‘[a]ll proposed final instructions shall be submitted prior to the commencement of trial but need not be exchanged with opposing counsel until the conclusion of the evidence in this case,’” Judge Margret Robb wrote for the appellate court. “Vande Brake notes that under Indiana’s Pattern Jury Instructions, ‘[a] proper second stage of a bifurcated trial would require that such instructions be given.’

“The State counters that they are not required by rule or statute to submit jury instructions and instead, jury instructions are left to the discretion of the trial court. We agree that neither the trial court order nor the trial rules required that the State offer instructions on the enhancement phase,” the appellate court wrote.

It therefore concluded that the trial court abused its discretion in dismissing a “legitimate and pending charge” and reversed and remanded to the trial court with instructions to impanel a new jury to hear the enhancement charge.

“The heart of this dispute is rooted in the State’s tenuous performance with respect to the enhancement. Except for the initial filing and the trial court’s grant of the firearm enhancement, there is no evidence in the record that the State raised the firearm enhancement or bifurcation in any manner – it was not discussed prior to or during trial, was not included in any proposed preliminary or final instructions, and was not included in the trial court’s preliminary or final instructions,” the appellate court wrote.

“Furthermore, the State failed to object to the trial court’s dismissal of the firearm enhancement on the spot and while, presumably, the jury was still in the courthouse, waiting instead to file a motion to correct error nearly one week later. And despite filing the enhancement count, the State was careless in failing to observe that the count had not been added to either CCS. We emphasize that parties bear a responsibility to manage their cases and assist the court; a party may not sit idly by and subsequently place the blame elsewhere for their own shortcomings.

“Although the State may not have been required to submit jury instructions on the issue, the State, having the burden of proof in both phases, had an obligation to raise the issue in a timely manner,” the panel concluded. “But for the enhancement statute’s requirement that the jury reconvene to hear the enhancement phase, this issue would have been waived under these circumstances. We therefore take this opportunity to remind the State to be mindful of this responsibility in the future.”