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

On Oct. 26, 2015, Marquell M. Jackson and four confederates forced entry into an upstairs apartment above the 711 Tavern to steal marijuana; a gunfight ensued causing multiple serious bodily injuries but no deaths.
Jackson was charged with multiple offenses including Level 1 burglary (resulting in serious bodily injury), attempted/attempted robbery counts, aggravated battery counts, and a criminal-gang enhancement.
Three days before trial, the State amended the gang-enhancement language from the statutory wording (“knowingly or intentionally was a member of a criminal gang”) to allege Jackson “was a known member of a criminal gang.” Jackson did not object to the amendment at trial.
The jury convicted Jackson on the substantive counts and on the gang enhancement; the trial court sentenced him to 30 years for burglary plus a consecutive 30-year gang enhancement (others concurrent).
On appeal the court considered (1) whether the amended gang enhancement charge was fundamentally erroneous, (2) double jeopardy concerns from multiple enhancements based on the same bodily injury, (3) admissibility of jailhouse phone calls, (4) the accomplice-liability jury instruction, and (5) sufficiency of evidence for burglary.

Issue	State's Argument	Jackson's Argument	Held
1. Validity of the amended criminal‑gang enhancement charge	Amendment was a charging technicality not requiring reversal	Amendment changed elements and alleged a non‑statutory offense (fundamental error)	Reversed enhancement: amendment omitted mens rea and added a non‑statutory element, producing fundamental error; vacate enhancement and its sentence
2. Double jeopardy from multiple enhancements based on same bodily injury	Acknowledged possible problem	Multiple convictions enhanced by same serious bodily injury violate double jeopardy	Reversed two convictions (robbery Count 3 and aggravated battery Count 8); remand to enter lesser included convictions and resentence
3. Admission of recorded jail phone calls	Calls were voluntary, relevant, and admissible; defendant warned calls were recorded	Calls implicated plea negotiations and were unduly prejudicial/misleading	Admission not an abuse of discretion; evidence properly admitted
4. Accomplice‑liability jury instruction	Instruction was a proper statement of law	Instruction relieved State of burden and was erroneous	No fundamental error; instruction upheld (defendant waived non‑fundamental review)
5. Sufficiency of evidence for Level 1 burglary (breaking)	Slightest physical act to gain entry suffices; moving sheet constituted breaking	Moving a sheet is not a structural impediment and thus not a "breaking"	Evidence sufficient: moving the sheet to gain entry satisfied “breaking” element

Rosales v. State, 23 N.E.3d 8 (Ind. 2015) (defines standard for fundamental error)
Moon v. State, 366 N.E.2d 1168 (Ind. 1977) (conviction for a non‑existent crime is a nullity)
Young v. State, 231 N.E.2d 797 (Ind. 1967) (only legislature may define crimes; charging a nonexistent offense offends criminal justice)
Tyson v. State, 51 N.E.3d 88 (Ind. 2016) (charging instrument must provide fair warning of criminal penalties)
Pierce v. State, 761 N.E.2d 826 (Ind. 2002) (multiple offenses may not be enhanced from the same bodily injury)
Street v. State, 30 N.E.3d 41 (Ind. Ct. App. 2015) (remedy: enter judgment on lesser‑penalty base offense when enhancements conflict)
Hancock v. State, 65 N.E.3d 585 (Ind. 2016) (even slight force or physical act suffices to prove "breaking" for burglary)