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Bruce Jackson v. State of Indiana
Case Number: 20A-CR-00764
Judge: Melissa S. May
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Indianapolis, IN - Criminal defense attorney represented Bruce Jackson with appealing following his convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”)1 and Level 5 felony battery by means of a deadly weapon charges.
Jackson and his girlfriend, L.A., lived together in a house on North Emerson
Avenue in Indianapolis. On May 5, 2019, two of Jackson’s friends, Stacy Hurt
and Donna Ezell, visited the house. Hurt brought a bottle of liquor with him.
1 Ind. Code § 35-47-4-5(c) (2018).
2 Ind. Code § 35-42-2-1(g)(2) (2018).
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At some point, Hurt poured a drink for L.A., and Jackson made a comment
that there was “something going on” between L.A. and Hurt. (Tr. Vol. II at
241.) L.A. became upset and threw a coffee cup at Jackson’s head.
 The coffee cup missed, but Jackson pulled out a handgun and shot L.A. The
bullet traveled through L.A.’s buttocks and lodged itself into the wall. Hurt fled
the house and flagged down Indianapolis Metropolitan Police Department
(“IMPD”) Officer Taylor Jones at a nearby gas station. Hurt told Officer Jones
about the shooting at Jackson’s house, and Officer Jones, along with another
officer, traveled to the house to investigate. They performed a security sweep of
the house, and Officer Jones found L.A. in a bedroom. She initially denied that
she had been shot, but Officer Jones noticed a hole and a blood spot near the
seat of L.A.’s pants. L.A. was also crying and had trouble sitting. Emergency
medical personnel responded to the scene and transported L.A. to Methodist
Hospital by ambulance.
 The State charged Jackson with Level 4 felony unlawful possession of a firearm
by an SVF; Level 5 felony battery by means of a deadly weapon; and Level 5
felony domestic battery by means of a deadly weapon.3
While the trial court
initially appointed a public defender to represent Jackson, Jackson asserted his
right to represent himself, and the court appointed Jackson’s public defender as
standby counsel. The trial court held a jury trial beginning on December 2,
3 Ind. Code § 35-42-2-1.3(c) (2016).
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2019. Prior to voir dire, the court ordered Jackson remain shackled, and the
following discussion occurred:
THE COURT: Secondly, you will remain in shackles. You may
not leave the defense table. You may stand if you choose to, but
you must stay at the seat at that table. So we’ll take these next
few minute[s], 20 minutes or so, to give you a chance to go
through those [jury] questionnaires.
MR. JACKSON: All right. I’ve got – yeah. Yeah, I’m going
through that and you saying other word [sic], I’ve got to stay
seated. So if I was going to cross-examine my witness, I’d crossexamine. I mean, I’m just saying in –
THE COURT: You may cross-examine from there.
MR. JACKSON: All right. I’m just asking because like I said in
the past, I was totally (indiscernible), I’m just asking now.
THE COURT: Yeah.
MR. JACKSON: I know we cited our case law down in Sullivan
County and they had their legs out, they came out with the sheet
and everything. And the judge got in trouble for that because
they said that I was exposed to the jury. They put a seat [sic]
around there, and the seat [sic] fell down and they exposed the
And one other thing, when I got up to cross-examine the witness
and everything, they seen the leg shackles. And there’s a case – I
can’t think of the name of that case just right off the bat, where
[in] that case the person had a situation like that, and the case got
overturned because they exposed themselves to the jury with leg
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THE COURT: Well, then if you’re not satisfied with that then
you will have an item for appeal, you’ll have an issue for appeal.
(Id. at 55-56.) As the trial proceeded, Jackson did not further mention being
shackled. The jury returned guilty verdicts on the counts of battery by means of
a deadly weapon and domestic battery by means of a deadly weapon. The jury
also found that Jackson possessed a gun.
 Jackson waived his right to have a jury determine whether he qualified as an
SVF, and he elected instead for the court to make that determination. The State
presented evidence that Jackson’s right thumbprint matched the thumbprint on
an arrest report from 1994. The State then submitted an abstract of judgment
indicating Jackson had been convicted of two counts of Class B felony robbery4
and one count of Class B felony criminal confinement.5
The court found that
Jackson qualified as an SVF. The court “merged” Jackson’s domestic battery
conviction with his battery by means of a deadly weapon conviction and
sentenced Jackson to concurrent terms of nine years for unlawful possession of
a firearm by an SVF and three years for battery by means of a deadly weapon.
(App. Vol. II at 19.)
4 Ind. Code § 35-42-5-1 (1984).
5 Ind. Code § 35-42-3-3 (1989).
6 It is a double jeopardy violation for a trial court to enter two judgments of conviction for the same criminal
act. Stickrod v. State, 108 N.E.3d 385, 392 (Ind. Ct. App. 2018), trans. denied. “A trial court’s act of merging,
without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Id. Thus, rather
than denoting that Jackson’s domestic battery conviction merged with his battery by means of a deadly
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Discussion and Decision
I. Shackles During Trial
 Jackson argues he is entitled to a new trial because the court tried him in
shackles without explaining its reason for doing so. As the United States
Supreme Court has explained:
[T]he Fifth and Fourteenth Amendments prohibit the use of
physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial. Such a
determination may of course take into account the factors that
courts have traditionally relied on in gauging potential security
problems and the risk of escape at trial.
Deck v. Missouri, 544 U.S. 622, 629, 125 S. Ct. 2007, 2012 (2005). We do not
permit the routine use of restraints because they undermine the presumption of
innocence, diminish the defendant’s ability to confer with counsel, and upset
the formal dignity of the courtroom. Id. at 630-31. Our Indiana Supreme Court
has elaborated that “shackling may be imposed, but only if the trial court makes
a particularized finding of need in the specific case.” Stephenson v. State, 864
N.E.2d 1022, 1029 (Ind. 2007), reh’g denied, cert. denied, 552 U.S. 1314 (2008).
“Jail garb and unnecessary shackling are both ‘inherently prejudicial’ and, if
proper objection is made, require reversal unless the State establishes ‘beyond a
weapon conviction, the sentencing order should indicate a guilty finding for domestic battery without entry
of a judgment of conviction.
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reasonable doubt that the [shackling] error complained of did not contribute to
the verdict.’” Id. (quoting Deck, 544 U.S. at 635, 125 S. Ct. at 2015).
 The State argues Jackson waived the issue. “A party’s failure to object to, and
thus preserve, an alleged trial error results in waiver of that claim on appeal.”
Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). The only time Jackson
addressed the trial court regarding being tried in shackles was in the discussion
prior to voir dire. Jackson voiced concern about the jury seeing his shackles
and inquired about examining witnesses, but Jackson did not state that he
objected to the shackles. The trial court allowed Jackson to examine witnesses
and testify from counsel table, and Jackson did not complain during trial that
the shackles hampered his ability to present a defense. There is also no
indication that the jury was ever able to see Jackson’s shackles. Therefore,
Jackson waived any argument that the trial court erred by trying him in
shackles because he did not make an objection. See Dilts v. State, 49 N.E.3d
617, 628 (Ind. Ct. App. 2015) (holding defendant waived issue on appeal by
failing to make a contemporaneous objection before the trial court), trans.
 Waiver notwithstanding, the evidence against Jackson was substantial. Jackson
was one of four people present when the shooting occurred. Hurt testified that
he saw Jackson shoot L.A., and Hurt identified Jackson in a police lineup.
L.A. told law enforcement at the hospital that her boyfriend shot her and that
her boyfriend was born in 1966. Detective Christopher Winter of the IMPD
performed a record search and learned that Jackson was the only person born in
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1966 living at the North Emerson house. Therefore, any error that resulted
from the trial court’s failure to make a particularized finding of need to shackle
Jackson was harmless beyond a reasonable doubt.
See Lakin v. Stine, 431 F.3d
959, 966 (6th Cir. 2005) (holding shackling error was harmless because
evidence against defendant was substantial), cert. denied, 547 U.S. 1118, 126 S.
Ct. 1925 (2006).
II. Waiver of Constitutional Arguments
 Initially, we address the State’s argument that Jackson waived any challenge to
the constitutionality of the SVF statute because he did not file a motion to
dismiss before the trial court. “Generally, a challenge to the constitutionality of
a criminal statute must be raised by a motion to dismiss prior to trial, and the
failure to do so waives the issue on appeal.” Rowe v. State, 867 N.E.2d 262, 267
(Ind. Ct. App. 2007). The SVF statute states that a person convicted of one of
twenty-nine enumerated offenses is a “serious violent felon,” and a “serious
violent felon who knowingly or intentionally possesses a firearm commits
unlawful possession of a firearm by a serious violent felon, a Level 4 felony.”
Ind. Code § 35-47-4-5 (2018).
7 Jackson contends that because he could not approach witnesses or the bench during sidebar conferences,
the trial court conveyed to the jury that “Jackson, unlike everyone else in the courtroom, was a threat that
should be feared.” (Appellant’s Reply Br. at 6.) However, we cannot determine how, if at all, Jackson was
disadvantaged by having to remain at counsel table. Jackson was able to question witnesses regarding trial
exhibits even if he was not allowed to approach the witnesses, and the sidebar conferences denoted in the
record were brief and largely indiscernible. See, e.g., Wilhoite v. State, 7 N.E.3d 350, 355 (Ind. Ct. App. 2014)
(holding defendant failed to present a sufficient record to permit review of his claim that he was tried by a
jury of his peers).
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 The State charged Jackson with violating the SVF statute, and the charging
information specified that Jackson’s predicate offense was “Robbery as a Class
B felony under Cause Number 49G03-9401-CF-007977 on or about September
30, 1994[.]” (App. Vol. II at 23.) On appeal, Jackson argues the SVF statute is
unconstitutional under Article I, Section 16 or Article I, Section 18 of the
Indiana Constitution. However, Jackson did not to file a motion to dismiss or
advance these arguments before the trial court, and therefore, his constitutional
claims are waived. See Johnson v. State, 879 N.E.2d 649, 654 (Ind. Ct. App.
2008) (holding defendant’s constitutional claim waived because she did not file
a motion to dismiss).
III. Indiana Constitutional Arguments
 Waiver notwithstanding, we address the merits of Jackson’s constitutional
claims. We presume statutes passed by the legislature are constitutional, and
the party challenging the constitutionality of a statute bears the burden of
proving the statute is unconstitutional. Studler v. Ind. Bureau of Motor Vehicles,
869 N.E.2d 1156, 1159 (Ind. Ct. App. 2008). We view “the outcome below
without deference, and we resolve all doubts in favor of the legislature.” State v.
Zerbe, 50 N.E.3d 368, 369 (Ind. 2016). A party making an as-applied
constitutional challenge need only show the statute is unconstitutional
concerning the facts of the particular case. Id.
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A. Article I, Section 16
 Article I, Section 16 of the Indiana Constitution states, “All penalties shall be
proportioned to the nature of the offense.” Jackson argues that a Level 4 felony
conviction is disproportionate to the nature of his offense because the predicate
offense on which his charge was based occurred twenty-five years earlier. In
Conner v. State, our Indiana Supreme Court held that sentencing a defendant
who distributed fake marijuana to a sentence twice the maximum term for
selling real marijuana was out of proportion to the nature of his offense. 626
N.E.2d 803, 806 (Ind. 1993). The Court remanded the case for resentencing up
to the maximum penalty available for distributing real marijuana. Id. Jackson
maintains that his Level 4 felony conviction is out of proportion with the
penalty for carrying a handgun without a license, which is generally a Class A
misdemeanor and can be elevated to a Level 5 felony if the offender was
convicted of a felony within the previous fifteen years or if another special
condition applies. Ind. Code § 35-47-2-1(e). Jackson asserts that a “Class A
misdemeanor is a more appropriate penalty as applied to defendants with
decades-old predicate offenses.” (Appellant’s Br. at 15.)
 However, we are not swayed by Jackson’s likening of his offense to a Class A
misdemeanor. It is an appropriate function of the legislature to assign penalties
for criminal offenses. Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App. 2000),
trans. denied. We will not set aside a legislatively sanctioned penalty simply
because we think it is too severe. Id. “Rather, a sentence may be
unconstitutional by reason of its length, if it is so severe and entirely out of
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proportion to the gravity of the offense committed as ‘to shock public sentiment
and violate the judgment of a reasonable people.’” Id. (quoting Pritscher v. State,
675 N.E.2d 727, 731 (Ind. Ct. App. 1996)).
 Jackson’s offense was severe. He not only possessed a handgun after being
convicted of a serious violent felony, but he used the gun to shoot his long-term
girlfriend after a minor disagreement. As we have stated in reviewing a
previous challenge to the SVF statute: “Our legislature has prohibited those
who have committed serious violent felonies from possessing firearms,
presumably, to make it harder for them to continue committing other violent
crimes.” Id. Given the facts of this case, such presumption seems wise.
Consequently, we are not persuaded that a Level 4 felony is a disproportionate
penalty for violating the SVF statute, even if the felon’s predicate offense is
decades old. See Cole v. State, 790 N.E.2d 1049, 1053 (Ind. Ct. App. 2003)
(holding penalty for knowingly failing to deposit public funds was not
disproportionate to the nature of the offense), trans. denied.
B. Article I, Section 18
 Jackson also contends that because the SVF statute does not impose a time
limit regarding commission of the predicate offense, the statute violates Article
I, Section 18 of the Indiana Constitution, which provides: “The penal code shall
be founded on principles of reformation, and not vindictive justice.” In Teer,
the defendant challenged the SVF statute on the grounds that the statute was
unconstitutional under Article I, Section 18 of the Indiana Constitution, and we
held Section 18 was meant to govern the penal system as a whole and not
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intended to be a vehicle for fact-specific challenges. 738 N.E.2d at 289.
Jackson asks us to reconsider our holding in Teer and asserts that our
interpretation was misplaced because “Indiana did not have categorical and
timeless restrictions on gun possession, as in the SVF statute, at the time of
Article I, Section 18’s drafting and ratification,” and the section “should offer
some degree of protection grounded in ‘principles of reformation.’”
(Appellant’s Br. at 17.)
 While we are not bound by horizontal stare decisis, In re C.F., 911 N.E.2d 657,
658 (Ind. Ct. App. 2009), we are bound by Indiana Supreme Court authority.
See Dragon v. State, 744 N.E.2d 103, 107 (Ind. Ct. App. 2002) (“Supreme court
precedent is binding upon us until it is changed either by that court or by
legislative enactment.”), trans. denied. In Henson v. State, our Indiana Supreme
Court explained, “our precedents have held that art. 1, § 18, applies only to the
penal code as a whole, not to individual sentences.” 707 N.E.2d 792, 796 (Ind.
1999). We thus follow this authority and hold that the SVF statute does not
violate Article I, Section 18 of the Indiana Constitution.
Outcome: While the trial court should have entered a particularized finding of need before
ordering Jackson tried in shackles, Jackson failed to object and thus waived the
issue for appeal. Nonetheless, the evidence against Jackson was so substantial
that any such error was harmless beyond a reasonable doubt. Jackson also
waived his constitutional challenges to the SVF statute by not presenting them
Court of Appeals of Indiana | Memorandum Decision 20A-CR-764 | January 29, 2021 Page before the trial court, but we nonetheless hold the SVF statute is not
unconstitutional under either Article I, Section 16 or Article I, Section 18 of the
Indiana Constitution. We therefore affirm the trial court.