The Indiana Court of Appeals has split on whether erroneous jury instruction was a harmless error or gave the jurors another base for finding a defendant guilty of attempted murder.
Ruben Rosales, a member of the Latin Kings gang in Anderson, was convicted of attempted murder following an attack on a rival gang member, Sergio Torres. A witness saw Rosales, carrying a baseball bat, and another man enter an alley were Torres was. No one saw Rosales actually hit Torres on the head with the bat.
At trial, the jury was instructed on the requirements for attempted murder as well as accomplice liability.
Rosales argued, on appeal, that the trial court made a fundamental error when it did not tell the jury that an accomplice to attempted murder must act with specific intent to kill. Instead, during the Rosales’ trial, the court told the jury an accomplice is someone “who knowingly or intentionally aids, induces or causes another person to commit an offense.”
In Ruben Rosales v. State of Indiana, 48A02-1303-CR-229, the Court of Appeals rejected Rosales’ arguments. It pointed out the accomplice liability was not the only theory for his conviction and the state’s evidence supports the jury’s finding that he was guilty of attempted murder as the principal.
“Here, the trial court properly instructed the jury on all the elements of the offense of attempted murder, with respect to which the additional instructions on accomplice liability were mere surplusage,” Edward Najam Jr., wrote for the majority. “The jury’s verdict form states that the jury found Rosales guilty of ‘Attempted Murder’ without delineating whether the jury found him guilty as the principal or the accomplice. Thus, when the jury found Rosales guilty of attempted murder, the State had met its burden of proof on each and every element of the offense of attempted murder, and ‘it simply does not matter how’ the jury was instructed on accomplice liability.”
Judge Terry A. Crone dissented, arguing the jury instruction was a fundamental error because only the final instructions to the jury mentioned accomplice liability. This gave the jurors two distinct avenues for finding Rosales guilty and while they could have convicted him as principal, they could also have found him guilty as an accomplice based on the erroneous instruction.