Marquell M. Jackson v. State of Indiana , 84 N.E.3d 706 ( 2017 )


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  •                                                                                 FILED
    Oct 05 2017, 8:44 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Matthew J. McGovern                                        Curtis T. Hill, Jr.
    Anderson, Indiana                                          Attorney General of Indiana
    Justin F. Roebel
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Marquell M. Jackson,                                       October 5, 2017
    Appellant-Defendant,                                       Court of Appeals Case No.
    82A04-1609-CR-2074
    v.                                                 Appeal from the Vanderburgh
    Circuit Court
    State of Indiana,                                          The Honorable Kelli E. Fink,
    Appellee-Plaintiff.                                        Magistrate
    Trial Court Cause No.
    82C01-1510-F1-6686
    Najam, Judge.
    Statement of the Case
    [1]   Marquell M. Jackson appeals his convictions and sentence, following a jury
    trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony;
    four counts of attempted robbery, as Level 3 felonies; two counts of aggravated
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                    Page 1 of 22
    battery, as Level 3 felonies; and for being found to have been a member of a
    criminal gang, a sentencing enhancement. Jackson raises seven issues for our
    review, but we address only the following five issues:
    1.       Whether the trial court committed fundamental error
    when it permitted the State to amend the charge for the
    criminal gang enhancement such that the charge no longer
    stated a cognizable offense.
    2.       Whether two of Jackson’s convictions violated
    Indiana’s prohibitions against double jeopardy.
    3.       Whether the trial court abused its discretion when it
    admitted into evidence phone calls Jackson had made
    from jail.
    4.       Whether the trial court committed fundamental error
    when it instructed the jury on accomplice liability.
    5.       Whether the State presented sufficient evidence to support
    Jackson’s conviction for burglary, as a Level 1 felony.
    [2]   We hold that the trial court committed fundamental error when it permitted the
    State to amend the charge on the criminal gang enhancement such that the
    charge no longer stated an offense under Indiana law. We also hold that two of
    Jackson’s convictions violate Indiana’s prohibitions against double jeopardy
    because they were enhanced by the same bodily injury as Jackson’s conviction
    for burglary, as a Level 1 felony. In light of those holdings, we reverse
    Jackson’s criminal gang enhancement and remand with instructions for the trial
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    court to vacate that enhancement. We also reverse the two of Jackson’s
    convictions that are based on the same bodily injury as his conviction for
    burglary, as a Level 1 felony, and we remand with instructions for the court to
    enter judgment of conviction on lesser-included offenses on those counts. And
    we instruct the court to resentence Jackson in accordance with this opinion.1
    On the remaining issues, we affirm.
    Facts and Procedural History
    [3]   In October of 2015, Jeremy Herbert lived in a second-floor apartment above the
    711 Tavern in Evansville. Herbert’s apartment was one of two second-floor
    apartments above the 711 Tavern; one could access those two apartments from
    the street by gaining entry through an exterior door that Herbert could remotely
    open. Herbert also had video surveillance on that door. Once through that
    door, visitors would go upstairs to a hallway common to both apartments. One
    apartment had a door off the hallway; Herbert’s apartment had a doorframe in
    which he had hung a sheet to “act as the doorway.” Tr. Vol. IV at 153. Logan
    Orth stayed intermittently at Herbert’s apartment and sold marijuana out of the
    apartment.
    [4]   On October 25, Jackson and his friend, Diego Thomas, learned that Orth had
    one-half pound of marijuana in Herbert’s apartment. Jackson and Thomas
    decided that they would go to Herbert’s apartment “[t]o rob them” of that
    1
    In light of our holdings, we do not address Jackson’s argument under Indiana Appellate Rule 7(B) or his
    other arguments under the criminal gang enhancement.
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                      Page 3 of 22
    marijuana. Id. at 9. However, upon approaching the exterior door, they “saw
    [the] camera above the door” and abandoned their plan. Id.
    [5]   The next day, Jackson and Thomas again decided to rob Orth at Herbert’s
    apartment. This time, Jackson and Thomas obtained the assistance of Jarvice
    Sears, Corey Cain, and O’Neill Bruin to help them carry out their plan. The
    five confederates acquired two firearms and some face masks to use in the
    commission of the invasion. They agreed to equally split any marijuana and
    money they seized from Orth.
    [6]   Shortly before 9:00 p.m., the group approached the exterior door to Herbert’s
    apartment and observed the surveillance camera. They then “debate[d]”
    among themselves “whether . . . [to] keep on going . . . or just leave.” Id. at 17.
    Jackson advocated for continuing forward, and, after about five minutes of
    discussion, the cohort agreed. Thomas then “pulled the camera out [of] the
    wall,” the five men went through the exterior door,2 they “pulled back” the
    sheet to Herbert’s apartment, and they entered the apartment. Id. at 18-19.
    [7]   At that time, about ten people, including Orth and Herbert, were inside the
    apartment “smoking blunts.” Id. at 156. The five intruders demanded the
    occupants’ marijuana and money. Sears pulled out a firearm. Jackson told the
    occupants that Sears “ain’t playing with you all.” Id. at 25. Nonetheless, Orth
    also pulled out a firearm, and a gunfight ensued. Sears shot Orth twice and
    2
    The exterior door was unlocked at the time.
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 4 of 22
    Orth shot Sears once. The confederates then fled the apartment. On the way
    out, Cameron Kendall, a resident in the other upstairs apartment, came into the
    hallway. Sears shot Kendall in the stomach. Kendall, a former sniper for the
    United States Army, returned fire at the confederates, striking Sears once,
    Thomas once, and Bruin twice.
    [8]    Jackson and his cohort made their way outside, but Sears collapsed shortly after
    and Thomas remained with him until police arrived. The other three eventually
    drove to a hospital and were arrested thereafter. No one died from the
    gunfight.
    [9]    While in prison, Jackson made several phone calls that the State recorded. The
    State advised Jackson prior to the phone calls that it would record them and
    that they could be used against him at trial. Undeterred, in one call Jackson
    stated that “[t]he only thing they could stick on me is that burglary. Now, I can
    get that dropped down to where I can go to the Safe House and get House
    Arrest, so I’ll plead out to that . . . .” Tr. Vol. III at 108. In another call,
    Jackson again commented that he could be convicted of burglary. Following
    several inaudible comments relating to his alleged participation in the events at
    the apartment, Jackson then stated that “[w]hen everything started happening I
    ran because I didn’t know, I knew but I didn’t know, so when I seen what I
    didn’t know, then I ran.” Id. at 111.
    [10]   The State charged Jackson with sixteen offenses and a criminal gang
    enhancement. The State’s original charge of the criminal gang enhancement
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017    Page 5 of 22
    tracked the language of Indiana Code Section 35-50-2-15(b) (2015) and stated,
    in relevant part, that, “on October 26, 2015, [Jackson] knowingly or
    intentionally was a member of a criminal gang while committing the underlying
    offense.” Appellant’s App. Vol. II at 56. However, three days before Jackson’s
    trial, the State amended that language to instead allege that Jackson “was a
    known member of a criminal gang[] while committing the underlying felony
    offense.” Id. at 97. Jackson did not object to the State’s amendment of the
    charging information on the criminal gang enhancement.
    [11]   The trial court ordered Jackson’s ensuing jury trial to be bifurcated between the
    substantive offenses and the criminal gang enhancement. During the first
    phase, numerous witnesses, including some of his confederates, testified and
    described the events of October 26, 2015. The State also introduced, over his
    objections, Jackson’s jailhouse phone calls as described above. The jury found
    Jackson guilty as charged.
    [12]   Jackson’s jury trial then proceeded to the second phase on the criminal gang
    enhancement allegation. In his introductory remarks to the jury at the start of
    that proceeding, Jackson’s attorney stated:
    I’ll keep it straight to the point on this one. The Court’s
    instruction number 2 says that the State has alleged that Mr.
    Jackson was a known member of a gang while committing the
    underlying felony offenses and, not or, and Mr. Jackson
    committed the felony offenses at the direction of or in affiliation
    with a criminal gang. Number 1 was a known member. Number 2,
    at the direction or an affiliation. Keep those two factors in mind
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    when you listen to the evidence. I don’t think it will be sufficient to
    convince you beyond a reasonable doubt . . . .
    Tr. Vol. V at 164-65 (emphases added). The State then called Thomas as a
    witness, and he redescribed the events of October 26, 2015. In a short cross-
    examination, Jackson’s attorney questioned Thomas as follows:
    Q     . . . you[’d] consider yourself a friend of [Jackson’s]
    wouldn’t you?
    A        Yes.
    Q        How long have you all been friends?
    A        Five or six years.
    Q        Mr. Jackson, he’s not a known member of a gang is he?
    A        No, he is not.
    Id. at 178. The State then called Evansville Police Department Detective Keith
    Whitler, who investigated the October 26, 2015, incident. He stated that
    Jackson and his cohort acted together in the commission of those offenses, but
    he did not testify to any prior known gang involvement by Jackson. Finally,
    the State called Bruin. Bruin, like Thomas, described the events of October 26,
    2015. The totality of Bruin’s cross-examination is as follows:
    Q     Mr. Bruin, how long have you been, well are you friends
    with Marquell Jackson?
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017        Page 7 of 22
    A        Yes.
    Q        How long have you been friends with him?
    A        Going on like 7 years.
    Q        Do you know Mr. Jackson to be a member of a gang?
    A        No.
    Q         . . . did he act at your direction?
    A        What do you mean by act?
    Q        Did you make him do anything?
    A        No.
    Id. at 189.
    [13]   The court gave the jury four instructions on the criminal gang enhancement.
    The court’s instruction number two recited the State’s charging information,
    namely, that Jackson “was a known member of a gang while committing the
    underlying felony offenses . . . .” Appellant’s App. Vol. III at 57. However, the
    court’s instruction number three informed the jury that, to find Jackson guilty
    under the enhancement, the jury had to find that he “knowingly or intentionally
    was a member of a criminal gang while committing the offense . . . .” Id. The
    jury found Jackson guilty on the enhancement.
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 8 of 22
    [14]   Thereafter, the trial court entered its judgment of conviction against Jackson for
    burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four
    counts of attempted robbery, as Level 3 felonies; two counts of aggravated
    battery, as Level 3 felonies; and for being a member of a criminal gang. The
    court ordered Jackson to serve thirty years for burglary, as a Level 1 felony,
    enhanced by an additional thirty years for being a member of a criminal gang.
    The court ordered Jackson’s other sentences to run concurrent with those sixty
    years. This appeal ensued.
    Discussion and Decision
    Issue One: The Amended Criminal Gang Enhancement Charge
    [15]   We first address Jackson’s argument on appeal that the trial court committed
    fundamental error when it permitted the State to amend the criminal gang
    enhancement allegation. Fundamental error “is a substantial, blatant violation
    of due process” that “must be so prejudicial to the rights of a defendant as to
    make a fair trial impossible.” Rosales v. State, 
    23 N.E.3d 8
    , 11 (Ind. 2015)
    (citations omitted).
    [16]   The State’s original charge of the criminal gang enhancement tracked the
    statutory language and stated in relevant part that, “on October 26, 2015,
    [Jackson] knowingly or intentionally was a member of a criminal gang while
    committing the underlying offense.” Appellant’s App. Vol. II at 56; see I.C. §
    35-50-2-15(b)(1). However, nearly seven months later and three days before
    Jackson’s trial, the State amended that language to instead allege that Jackson
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 9 of 22
    “was a known member of a criminal gang[] while committing the underlying
    felony offense.” Id. at 97.
    [17]   The language of the amended charge does not track and is not consistent with
    the language of the statute. See I.C. § 35-50-2-15(b)(1). In particular, the
    amended charge omits a material element from the statute, namely, the mens
    rea. And the amended charge adds an element that is not within the statute,
    namely, that Jackson was “a known member” of a criminal gang. Appellant’s
    App. Vol. II at 97.
    [18]   As a result of those changes, the amended charge is substantially different from
    the statutory language and carries a wholly different meaning. For example,
    under the language of the State’s amended charge, the State needed only to
    show that someone3 believed Jackson to be a member of a criminal gang. But
    the Indiana Code demands that Jackson knowingly or intentionally was a member
    of a gang. I.C. § 35-50-2-15(b)(1).4 Thus, it is not enough under the statute that
    some third parties might have believed Jackson to be a member of a gang;
    Jackson’s membership must have been real and the result of his knowing or
    intentional conduct. In other words, being a known member of a gang is not
    equivalent to knowingly or intentionally being a member of a gang. The
    3
    While Indiana Code Section 35-50-2-15(g) provides a limited description of some evidence the State may
    use to demonstrate membership in a criminal gang, that statute is not exhaustive.
    4
    A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious
    objective to do so. I.C. § 35-41-2-2(a). And a person engages in conduct “knowingly” if, when he engages in
    the conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b).
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                    Page 10 of 22
    amended charge did not state an allegation under the criminal gang
    enhancement statute.
    [19]   The Indiana Supreme Court has long recognized that a “[c]onviction [for] a
    non-existent crime is fundamental error” and “a nullity.” Moon v. State, 
    267 Ind. 27
    , 
    366 N.E.2d 1168
    , 1168-69 (1977). Indeed, as our Supreme Court has
    made clear, a conviction where “[t]here is no such offense” in the Indiana Code
    “does not follow any legal authority” and “offends our concepts of criminal
    justice.” Young v. State, 
    249 Ind. 286
    , 
    231 N.E.2d 797
    , 799 (1967). It is the
    province of our legislature to define crimes and penalties. Ind. Const. art. 4 §§
    22-23. It is not too much to ask the State not to improvise but to charge
    defendants only with crimes as defined by our legislature.
    [20]   Further, “it is well-established that due process requires that a defendant be
    given notice of the crime or crimes with which he is charged so that he can
    prepare his defense. Absent sufficient notice that a particular offense is
    charged, a defendant cannot be convicted of that crime.” Thompson v. State, 
    761 N.E.2d 467
    , 470 (Ind. Ct. App. 2002) (quotation marks omitted). Likewise, as
    Justice Massa wrote for our Supreme Court, it is a fundamental principle that
    “people have a right to fair warning of the criminal penalties that may result
    from their conduct.” Tyson v. State, 
    51 N.E.3d 88
    , 92 (Ind. 2016). And the
    charging information must be sufficiently specific to ensure that the defendant
    will not twice be put in jeopardy for the same act. Blackburn v. State, 
    260 Ind. 5
    ,
    
    291 N.E.2d 686
    , 690 (1973).
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 11 of 22
    [21]   The State asserts that Jackson’s challenge is merely to the sufficiency of the
    charging information. The Indiana Supreme Court has held that no
    fundamental error exists when a charge erroneously states the mens rea as
    “knowingly” rather than “intentionally” when specific intent is required.
    Burgess v. State, 
    461 N.E.2d 1094
    , 1097-98 (Ind. 1984). Our Supreme Court has
    also held that, when a charging information erroneously titles the alleged
    offense using a label for an offense that does not exist, the charging information
    by itself does not demonstrate reversible error if the substantive allegation in the
    charge puts the defendant on notice that the State is actually charging an
    existing offense. Head v. State, 
    443 N.E.2d 44
    , 51 (Ind. 1982). But the State’s
    amended charge here does not merely misstate the mens rea or mistitle the
    offense.
    [22]   Rather, while the amended charge here states the correct name for the charge
    and provides the correct legal citation, as explained above in substance the
    charge alleges an act that does not constitute a criminal gang enhancement as
    defined in the Indiana Code. And we have long held that it is typically “the
    text of the charging information,” as opposed to its title, “[t]hat constitutes the
    offenses with which [a defendant] was charged and convicted.” Funk v. State,
    
    714 N.E.2d 746
    , 750 (Ind. Ct. App. 1999), trans. denied; see also Head, 443
    N.E.2d at 51. We have also repeatedly concluded that the complete omission
    of a material element of an offense, such as the mens rea, is fundamental error
    when that omission fails to give the defendant notice of the elements of the
    offense and makes him unable to adequately prepare his defense. E.g.,
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    22 Thompson, 761
     N.E.2d at 470; Downey v. State, 
    726 N.E.2d 794
    , 799 (Ind. Ct.
    App. 2000), trans. denied; Phillips v. State, 
    518 N.E.2d 1129
    , 1131-32 (Ind. Ct.
    App. 1988); see also Blackburn, 
    291 N.E.2d at 690
     (stating that “certain details
    may be omitted” from the charging information so long as there is “sufficient
    information to enable [the defendant] to prepare his defense and to assure that
    he will not twice be put in jeopardy for the same crime”). Here, the substance
    of the charging information failed to state an offense and completely omitted
    the mens rea. Thus, with its amended charge, the State put Jackson on notice
    that he was being charged with a nonexistent offense.
    [23]   Further, the fundamental nature of the erroneously amended charge had a
    direct impact throughout the trial proceedings that followed. During the second
    phase of his jury trial, Jackson’s counsel repeatedly emphasized in his
    arguments to the jury and in his cross-examination of the witnesses the part of
    the amended charge that was added by the State in error—namely, whether
    Jackson was “a known member” of a gang. Tr. Vol. V at 164-65, 178, 189.5 In
    other words, the State’s error required Jackson to prepare his defense to attack
    irrelevant facts rather than relevant facts. Also, two of the trial court’s four
    instructions to the jury at the conclusion of the second phase were
    incompatible: in instruction two, the court informed the jury of the language of
    5
    The parties dispute on appeal whether the timing of the amendment enabled Jackson to adequately prepare
    his defense. But, while the record is clear that Jackson’s counsel had a defense to the amended charge
    prepared, the record is equally clear that that defense was focused almost exclusively on the erroneous
    language of the amended charge. Insofar as the State suggests on appeal that the original charge properly
    followed the statutory language and therefore precludes a finding of fundamental error, we reject the State’s
    argument in light of the record on appeal.
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                      Page 13 of 22
    the State’s erroneously amended charge; in instruction three, the court informed
    the jury of the proper statutory language, which included the mens rea omitted
    by the State from its amended charge.
    [24]   Again, “[t]he purpose of an information is to advise the defendant of the
    particular crime charged so that he can prepare a defense.” McGee v. State, 
    495 N.E.2d 537
    , 538 (Ind. 1986). That purpose cannot be fulfilled where, as our
    Supreme Court said in Tyson, there is no “fair warning” that the conduct
    complained of by the State in its information is an offense. 51 N.E.3d at 92.
    That purpose also cannot be fulfilled where, as here, the State at trial presents
    evidence of an act other than that charged. E.g., Young v. State, 
    30 N.E.3d 719
    ,
    726-28 (Ind. 2015).
    [25]   In addition, the amended charge does not adequately protect Jackson from
    double jeopardy. It is not clear from the record whether the State punished
    Jackson for having merely been “a known member” of a gang (as alleged in the
    amended charge and actually defended against) or for “knowingly or
    intentionally” being a gang member during the instant offenses (as originally
    charged and actually tried by the State). Accordingly, the amended charge “did
    not adequately describe the charge so that [Jackson] could plead this present
    conviction should he subsequently be charged with” the same act. Griffin v.
    State, 
    439 N.E.2d 160
    , 161-62 (Ind. 1982). Thus, the amended charge is
    inadequate to protect Jackson from double jeopardy.
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    [26]   The amended charge for the criminal gang enhancement is fundamentally
    erroneous on this record for another reason. Even if it were acceptable for the
    State to hold someone to trial for a nonexistent offense, Chief Justice Rush has
    explained for our Supreme Court that it violates a defendant’s fundamental
    right to due process to allow the State to charge an offense on a specified set of
    facts, have the defendant rely on the language of that charge to prepare his
    defense, and then allow the State to present evidence of a different offense—
    including an otherwise inherently included lesser offense—to support the
    charge. Young, 30 N.E.3d at 726-28.
    [27]   Here, there is no question that the State expressly based its charge on Jackson
    being “a known member” of a criminal gang. Like the defendant in Young,
    Jackson “frame[d his] defense” solely in terms of that language “to the
    exclusion of any other” defense. Id. Yet, during trial, the State wholly failed to
    produce any evidence that Jackson was “a known member” of a criminal gang,
    as Jackson emphasized in his arguments to the jury and in his cross-
    examination of the witnesses. As our Supreme Court made clear in Young, the
    State cannot engage in such an evidentiary bait-and-switch. Id. Thus, even if
    the State were permitted to charge the criminal gang enhancement as amended,
    the State did not present evidence to support the allegation that Jackson was “a
    known member” of a criminal gang, and reversal is required. Id.
    [28]   In sum, the amended charge was a misdirection. The trial court committed
    fundamental error when it permitted the State to amend the criminal gang
    enhancement allegation to charge the defendant with being “a known member”
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 15 of 22
    of a criminal gang. In its operation and effect, the amended charge poisoned
    the well as it skewed the evidence and argument and caused the defendant to be
    tried for and defend against an offense that does not exist under the statute. We
    reverse Jackson’s enhancement and remand with instructions that the court
    vacate the enhancement and the sentence imposed on it.
    Issue Two: Double Jeopardy
    [29]   Jackson also asserts that the trial court violated his right to be free from double
    jeopardy when it entered its judgment of conviction on burglary, as a Level 1
    felony; robbery, as a Level 2 felony (as alleged in Count 3); and aggravated
    battery, as a Level 3 felony (as alleged in Count 8), because each of those three
    offenses was enhanced based on the same serious bodily injury to Orth. The
    State acknowledges that the enhanced robbery and aggravated battery offenses
    “may violate principles of double jeopardy.” Appellee’s Br. at 27.
    [30]   We agree. The Indiana Supreme Court has long recognized that multiple
    offenses may not be enhanced based on the same bodily injury. Pierce v. State,
    
    761 N.E.2d 826
    , 830 (Ind. 2002). In such circumstances, entry of judgment on
    the base-level offense for those offenses with the less severe penal consequences
    is the appropriate remedy. See Street v. State, 
    30 N.E.3d 41
    , 48-49 (Ind. Ct. App.
    2015), trans. denied. Accordingly, we reverse Jackson’s convictions under Count
    3 for robbery, as a Level 2 felony, and under Count 8 for aggravated battery, as
    a Level 3 felony. We remand to the trial court with instructions that it instead
    enter judgment of conviction for the lesser-included offenses of, respectively,
    robbery, as a Level 5 felony, and battery, as a Class B misdemeanor. See I.C. §§
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 16 of 22
    35-42-5-1(a) (base-level offense of robbery); 35-42-2-1(c) (base-level offense of
    battery).
    Issue Three: Admission of Phone Calls
    [31]   We next consider Jackson’s argument that the trial court abused its discretion
    when it admitted excerpts from the two phone calls he had made from prison
    into evidence. The trial court has “inherent discretionary power on the
    admission of evidence, and its decisions are reviewed only for an abuse of that
    discretion.” McManus v. State, 
    814 N.E.2d 253
    , 264 (Ind. 2004) (internal
    quotation marks omitted). An abuse of discretion occurs when the trial court’s
    judgment “is clearly against the logic and effect of the facts and circumstances
    and the error affects a party’s substantial rights.” Guilmette v. State, 
    14 N.E.3d 38
    , 40 (Ind. 2014).
    [32]   According to Jackson, the trial court abused its discretion when it admitted
    those excerpts because they “concerned inadmissible plea negotiations and
    w[ere] highly misleading and prejudicial.” Appellant’s Br. at 20. But we agree
    with the State that, his bald assertions aside, Jackson has made no showing that
    his statements had any relationship to any plea negotiations. Moreover,
    Jackson was advised prior to his phone calls that they could be recorded and
    used against him at trial, and he does not suggest on appeal that his admissions
    following that advisement were not made voluntarily, knowingly, or
    intelligently. See Baer v. State, 
    866 N.E.2d 752
    , 762 (Ind. 2007).
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 17 of 22
    [33]   We also reject Jackson’s assertions that the excerpts were irrelevant,
    misleading, and highly prejudicial. First, Jackson did not preserve for appellate
    review his argument that the excerpts were irrelevant, see Tr. Vol. III at 73, and,
    as such, we do not consider that argument. Second, the trial court has broad
    discretion to determine whether the probative value of relevant evidence is
    substantially outweighed by the danger of unfair prejudice. Snow v. State, 
    77 N.E.3d 173
    , 177, 179 (Ind. 2017). The unfair prejudice, if any, from Jackson’s
    own admissions “was not so high that it overrode the trial court’s wide
    discretion.” Id. at 179. Accordingly, the trial court did not abuse its discretion
    in the admission of the excerpts from the jailhouse phone calls.
    Issue Four: Jury Instruction on Accomplice Liability
    [34]   Jackson asserts that the trial court committed fundamental error when it
    instructed the jury on accomplice liability. As the Indiana Supreme Court has
    explained:
    As “[t]he manner of instructing a jury lies largely within the
    discretion of the trial court,” this Court reverses a trial court’s
    jury instruction “only for an abuse of discretion.” But because
    [the appellant] did not object to the accomplice liability
    instruction given by the trial court or tender his own accomplice
    liability instruction, he waived his right to appeal the instruction
    provided to the jury. Consequently, we “will only reverse the
    trial court if the trial court committed error that was
    fundamental,” in instructing the jury on the elements of
    accomplice liability when attempted murder is charged.
    Fundamental error “is a substantial, blatant violation of due
    process” that “must be so prejudicial to the rights of a defendant
    as to make a fair trial impossible.”
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    Rosales, 23 N.E.3d at 11 (citations omitted; first brackets original to Rosales).
    [35]   The trial court instructed the jury on accomplice liability as follows:
    A person who knowingly or intentionally aids another in
    committing a crime is guilty of that crime. In order to commit a
    crime of aiding, a person must have knowledge that he is aiding
    the commission of the crime. To be guilty, he does not have to
    personally participate in the crime nor does he have to be present
    when the crime is committed. Mere presence alone is not
    sufficient to prove the Defendant aided the crime. Failure to
    oppose the commission of the crime alone is also insufficient to
    prove that the Defendant aided the crime. However, presence at
    the scene of the crime and failure to oppose the crime’s
    commission are factors which may be considered in determining
    whether there was aiding another to commit the crime. Before
    you can convict the Defendant as an accessory the State must
    prove the elements of the crime and that the Defendant
    knowingly or intentionally aided another to commit the crime
    beyond a reasonable doubt.
    Appellant’s App. Vol. III at 31.
    [36]   On appeal, Jackson asserts that that instruction was erroneous because it
    “relieved the State of its burden of proving that Marquell participated in the
    underlying offenses . . . .” Appellant’s Br. at 27. In support of that assertion,
    Jackson contends that we have previously held a substantially similar
    instruction “to be erroneous.” Id. (citing Hawn v. State, 
    565 N.E.2d 362
    , 366
    (Ind. Ct. App. 1991)). But Hawn has no such holding. Rather, after quoting the
    instruction in that case, we stated:
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017   Page 19 of 22
    appellant argues that the following sentence was erroneous: “He
    does not have to personally participate in the crime nor does he
    have to be present when the crime is committed.” Our courts
    have repeatedly held that an accessory’s presence at the scene of
    the crime is not necessary and that the evidence need not show
    that the accessory personally participated in the commission of
    each element of the crime. Johnson v. State (1981), Ind. App., 
    423 N.E.2d 623
    , 627. Although the State’s instruction does not
    qualify the participation language, any error was harmless due to
    the strong evidence of appellant’s guilt. Hurt v. State (1990), Ind.
    App., 
    553 N.E.2d 1243
    , 1249.
    Hawn, 565 N.E.2d at 366. At best, that language says that the instruction could
    have been more clear. But it does not say that the instruction was erroneous,
    and it certainly does not suggest that any such error necessarily rises to the level
    of fundamental error. Indeed, our case law is clear that instructions
    substantially similar to Jackson’s are adequate instructions. E.g., Boney v. State,
    
    880 N.E.2d 279
    , 293-94 (Ind. Ct. App. 2008), trans. denied. We reject Jackson’s
    challenge to the accomplice liability instruction.6
    Issue Five: Sufficient Evidence of Burglary
    [37]   Last, Jackson asserts that the State failed to present sufficient evidence to
    support his conviction for burglary, as a Level 1 felony. Our standard of review
    is clear: in reviewing such claims, we will consider only the evidence most
    favorable to the verdict and the reasonable inferences to be drawn therefrom.
    6
    Jackson’s citations to Fowler v. State, 
    900 N.E.2d 770
    , 774 (Ind. Ct. App. 2009), and Peterson v. State, 
    699 N.E.2d 701
    , 706 (Ind. Ct. App. 1998), are not supported by cogent argument, and we do not consider them.
    See Ind. Appellate Rule 46(A)(8)(a).
    Court of Appeals of Indiana | Opinion 82A04-1609-CR-2074 | October 5, 2017                        Page 20 of 22
    Leonard v. State, 
    73 N.E.3d 155
    , 160 (Ind. 2017). We will affirm the conviction
    if there is probative evidence from which a reasonable jury could have found
    the defendant guilty beyond a reasonable doubt. 
    Id.
     We will neither reweigh
    the evidence nor reassess the credibility of witnesses. 
    Id.
    [38]   To show that Jackson committed burglary, as a Level 1 felony, the State was
    required to prove beyond a reasonable doubt that Jackson broke and entered the
    building or structure of another person with the intent to commit a felony
    therein, and that Jackson’s act resulted in serious bodily injury to another. I.C.
    § 35-43-2-1. On appeal, Jackson asserts only that the State failed to present
    sufficient evidence that he broke into Herbert’s apartment.
    [39]   “[I]n Indiana, a ‘breaking’ is proved by showing that even the slightest force
    was used to gain unauthorized entry.” State v. Hancock, 
    65 N.E.3d 585
    , 591
    (Ind. 2016) (quotation marks omitted). Here, a member of Jackson’s cohort
    moved the sheet that Herbert had hung in his doorway, and which acted as a
    door to his apartment, in order to gain unauthorized entry into Herbert’s
    apartment. That, as a matter of law, is sufficient to show a “breaking” for
    purposes of the burglary statute. See id.; see also Meehan v. State, 
    7 N.E.3d 255
    ,
    258-59 (Ind. 2014).
    [40]   Still, Jackson contends that moving a sheet hung in a doorway is not sufficient
    because a sheet is not a “structural impediment.” Appellant’s Br. at 33 (citing
    Creasy v. State, 
    518 N.E.2d 785
    , 786 (Ind. 1988)). But we do not read Creasy to
    demand something more substantial than Herbert’s sheet. Indeed, in Hancock,
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    the Indiana Supreme Court cited with approval an opinion of this court in
    which we had held that “rush[ing] past a victim to gain entry” sufficed to show
    a breaking. 65 N.E.3d at 591 (citing Anderson v. State, 
    37 N.E.3d 972
    , 974-75
    (Ind. Ct. App. 2015)). Our Supreme Court also stated that “it is not necessary
    to show forcible entry, only that some physical act was used to gain entry.” 
    Id.
    (quoting McCormick v. State, 
    178 Ind. App. 206
    , 
    382 N.E.3d 172
    , 174 (1978)).
    Moving the sheet was a physical act used to gain entry. Accordingly, the State
    presented sufficient evidence to show that Jackson broke into Herbert’s
    apartment when a member of Jackson’s cohort physically moved the sheet in
    Herbert’s doorway to gain entry.
    Conclusion
    [41]   In sum, we reverse Jackson’s criminal gang enhancement and his convictions
    under Count 3 and Count 8. We remand with instructions that the trial court
    vacate the criminal gang enhancement and enter judgment of conviction under
    Count 3 for robbery, as a Level 5 felony, and under Count 8 for battery, as a
    Class B misdemeanor. We also instruct the trial court to resentence Jackson in
    accordance with this opinion. On all other issues, we affirm.
    [42]   Affirmed in part, reversed in part, and remanded with instructions.
    Kirsch, J., and Brown, J., concur.
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