Opinion
23A-CR-2492
06-04-2024
Adam David Cardoza, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Noble Circuit Court The Honorable Michael J. Kramer, Judge Trial Court Cause No. 57C01-2205-F5-37
ATTORNEY FOR APPELLANT
Victoria Bailey Casanova Casanova Legal Services Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Adam David Cardoza appeals his conviction for intimidation as a level 5 felony. He asserts the trial court committed fundamental error in instructing the jury. We affirm.
Facts and Procedural History
[¶2] Cory Turnbull and Michael Ryon are transportation divers who haul campers from a manufacturer in Goshen to sellers in other states. On the night of May 26, 2022, Turnbull and Ryon were traveling east on US-6 toward Ligonier to "get another camper" to move. Transcript Volume II at 169. The two men were driving separate pickup trucks, but they "run in pairs," meaning they travel together and follow each other. Id. at 172. Turnbull was traveling in front of Ryon. As they approached an intersection, they observed a car, driven by Cardoza, "coming from the right pretty fast and [it] didn't look like the car was going to stop." Id. at 170. Cardoza "locked the brakes up and skidded" "out into the street" in front of Turnbull and Ryon, causing each of them to swerve into the oncoming traffic lane to avoid colliding with him. Id. at 170-71, 201.
[¶3] Turnbull and Ryon passed Cardoza, and Cardoza began following the two trucks. Turnbull and Ryon spoke on the phone as they traveled, and Ryon told Turnbull that Cardoza was "on [his] butt." Id. at 172. Cardoza drove "right on [Ryon's] bumper" so Ryon "tapped his brakes" so that Cardoza might "back off." Id. at 172, 202. Cardoza sped around Ryon's truck and "cut [him] off and slammed on his brakes." Id. at 202. Ryon was again forced to swerve into the oncoming traffic lane to avoid a collision with Cardoza. Ryon passed Cardoza briefly, but then Cardoza "came around [Ryon] . . . at a high rate of speed" and passed him. Id.
[¶4] Cardoza pulled behind Turnbull's truck as they approached Ligonier on US-6. Turnbull observed that Cardoza was swerving. Both Ryon and Turnbull "figured [Cardoza had] been drinking or something" because something was obviously "wrong with him." Id. at 173. Cardoza drove extremely close to Turnbull's bumper and then tried to pass him toward the center lane. When Turnbull would not let him pass, Cardoza passed him "on the right side in the ditch[,]" and as he came back into the roadway, he "clip[ped]" Turnbull's front bumper. Id. at 173. Cardoza gave Turnbull "the finger" as he passed. Id. at 186. After this happened, Turnbull and Ryon hung up their phone call and each called 911 to report Cardoza's behavior.
[¶5] All three men reached Ligonier with Cardoza driving in front. Cardoza stopped at a Burger King, and Turnbull and Ryon pulled their vehicles right behind Cardoza. Cardoza exited his vehicle while carrying a machete in his hand and yelling, "I'm going to kill you white mother f---kers" as he walked toward Turnbull and Ryon. Id. at 178. Ryon exited his vehicle with a handgun. Cardoza continued yelling while holding the machete so Ryon backed away. As the two men circled Ryon's truck with their weapons, Ryon fired a shot into the ground. Turnbull, who was still on the phone with 911, subsequently exited his truck. Police arrived and took all three men into custody. Cardoza admitted that he had been drinking alcohol and an investigation revealed that his alcohol concentration equivalent was 0.149 grams per 210 liters of breath.
[¶6] The State charged Cardoza with intimidation with a deadly weapon, a level 5 felony, and operating a vehicle while intoxicated with a prior conviction, a level 6 felony. During the jury trial, the court granted Cardoza's motion to dismiss the operating while intoxicated charge leaving only the intimidation charge for the jury's consideration.
[¶7] At the conclusion of trial, among other final instructions, the court instructed the jury that Cardoza was charged with intimidation by information that provided that,
On or about May 26, 2022 . . . Adam D. Cardoza did communicate a threat to unlawfully injure Michael J. Ryon and/or Cory Turnbull, with intent that Michael J. Ryon and/or Cory Turnbull will be placed in fear that the threat will be carried out and, while committing said act, Adam D. Cardoza drew a deadly weapon, to wit: a machete ....
Transcript Volume III at 47-48. The court further instructed that in order to convict Cardoza of intimidation as charged, the State was required to prove that,
1 [Cardoza], 2, communicated a threat to Michael J. Ryon and/or Cory Turnbull, 3, with the intent that Michael J. Ryon and/or Cory Turnbull be placed in fear that the threat will be carried out, and 4, while committing the offense, [Cardoza] drew or used a deadly weapon. If the State fails to prove each of these elements beyond a reasonable doubt, you must find [Cardoza]
not guilty of Intimidation, a Level 5 felony, as charged in Count 1.Id. at 48. The court instructed jurors that they were the sole weighers of the testimony, they could choose what portions of testimony to believe or disbelieve, they could consider both direct and circumstantial evidence as proof of a fact, the verdict should not be based upon sympathy, and the statements of the attorneys were not evidence. As a final matter, the court instructed,
To return a verdict, each of you must agree to it. Each of you must decide the case for yourself, but only after considering the evidence with the other jurors. It is your duty to consult with each other. You should try to agree on a verdict, if you can do so without compromising your individual judgment.
* * * * *
After the verdict is read in court, you may be asked individually whether you agree with it.
* * * * *
I am submitting to you forms of possible verdict you may return. The foreperson should sign and date the verdict to which you all agree. Do not sign any verdict form for which there is not unanimous agreement. Sign only one verdict form for each count. The foreperson must return all verdict forms signed or unsigned.Id. at 50. The trial court then read the provided verdict forms to the jury, one which provided that Cardoza was "not guilty of Intimidation, a Level 5 felony as charged" and one that provided that Cardoza was "guilty of Intimidation, a Level 5 felony, as charged[.]" Id. at 51. Cardoza did not propose any final jury instructions, and he did not object to the court's final instructions or the verdict forms the court provided to the jury.
[¶8] The jury found Cardoza guilty of intimidation as a level 5 felony. He did not request to poll the jury. Following a sentencing hearing, the trial court imposed a five-year executed sentence.
Discussion
[¶9] Cardoza argues that the "jury did not receive a proper unanimity instruction." Appellant's Brief at 8. He concedes that he did not object to the trial court's unanimity instruction or tender his own unanimity instruction but argues the trial court committed fundamental error in instructing the jury.
[¶10] A party's failure to object to the trial court's instruction and offer an instruction of his own generally results in waiver of the issue for appellate review. Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011), reh'g denied. We observe that fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in "egregious circumstances." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. "Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error." Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied.
[¶11] In Indiana, a guilty verdict in a criminal case "must be unanimous." Baker, 948 N.E.2d at 1173-1174 (quoting Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973)). While unanimity is required "as to the defendant's guilt," unanimity is not required "as to the theory of the defendant's culpability." Id. (quoting Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006). Because certain cases "present problems with jury unanimity" the Indiana Supreme Court has advised "that courts should give a specific type of unanimity instruction when the circumstances of the case so require." Benson v. State, 73 N.E.3d 198, 201-202 (Ind.Ct.App. 2017). Specifically, in Baker, the Indiana Supreme Court held where "evidence is presented of a greater number of separate criminal offenses than the defendant is charged with," and the State does not "designate a specific act (or acts) on which it relies to prove a particular charge," the jurors "should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged." Baker, 948 N.E.2d at 1175-1177. The phrase "a greater number of separate criminal offenses than the defendant is charged with" refers to situations where evidence "is presented of entirely separate criminal incidents, each of which could be used to support a conviction." Baker v. State, 223 N.E.3d 1142, 1146 (Ind.Ct.App. 2023).
[¶12] Here, although the State referenced two potential victims of Cardoza's intimidation with a deadly weapon, a specific unanimity instruction was not required because the State did not present evidence of "entirely separate criminal incidents." Id. Rather, Cardoza's acts were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind.Ct.App. 2010), reh'g denied). The State presented evidence that Cardoza drove his vehicle erratically behind and beside both Ryon's and Turnbull's vehicles, at one point striking Turnbull's vehicle. The two men, who were traveling together but in separate vehicles, each followed Cardoza's vehicle and stopped behind it while reporting his behavior to law enforcement. While all three vehicles were stopped, Cardoza exited his vehicle, wielding a machete, and walked toward both Ryon and Turnbull yelling, "I'm going to kill you white mother f---kers." Transcript Volume II at 177-178. The encounter continued with Ryon eventually exiting his vehicle with a gun, firing that gun into the ground, and Turnbull exiting his vehicle to position himself between Ryon and Cardoza.
[¶13] This Court has held that where multiple acts that could each support a guilty verdict are all part of a continuous episode, as opposed to acts occurring at separate locations or at separate times, a Baker unanimity instruction is not required. Compare Benson, 73 N.E.3d at 198 (holding no specific unanimity instruction required regarding charge of one count of attempted murder when jury heard evidence that defendant shot at police officer twice during brief, continuous pursuit), trans. denied, and Vest v. State, 930 N.E.2d 1221, 1225 (Ind.Ct.App. 2010) (holding no specific unanimity instruction required where State charged defendant with one count of resisting law enforcement and presented evidence that defendant fled from three officers during continuous two-minute pursuit), reh'g denied, trans. denied, with Bowie v. State, 203 N.E.3d 535, 547-548 (Ind.Ct.App. 2023) (holding specific unanimity instruction required where State charged multiple acts of shooting that occurred at separate times), trans. denied, and Lainhart v. State, 916 N.E.2d 924, 941-942 (Ind.Ct.App. 2009) (holding specific unanimity instruction required where State charged defendant with one count of intimidation against alternative victims who were allegedly threatened at separate locations at separate times). We cannot say the trial court committed any error, let alone fundamental error, in instructing the jury.
[¶14] For the foregoing reasons, we affirm Cardoza's conviction.
[¶15] Affirmed.
Riley, J., and Foley, J., concur.