In Graves [v. State, 714 N.E.2d 724 (Ind. Ct. App. 1999)], we addressed a situation almost identical to that in the case before us. There, we reversed and remanded for a new trial when the trial court gave the jury an accomplice liability instruction after deliberations had begun, but did not re-read all the final instructions. The jury sent a note to the court asking: “Did [Graves] have to personally take the property to be guilty of robbery?” Id. at 725. Counsel for Graves told the court he believed the proper procedure would be to re-read the entire set of final instructions, including any additional instructions. Instead, as in the case before us, the court read to the jury only an instruction on accomplice liability. Graves was convicted of robbery and other offenses.
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In Graves, as in the case before us, the jury sent a note asking specifically about the charge of robbery and then, after receiving the additional instruction on accomplice liability, returned with a verdict of guilty as to that charge. As we explained in Graves:
In this situation the potential for prejudice is great. The evidence reveals that Graves’ companions searched Jones’ house and removed items from the residence, but it does not show that Graves actually removed any of the objects from the house. [Footnote omitted.] Therefore, when the trial court instructed the jury on accomplice liability, without re-reading the entire set of final instructions, it not only placed special significance on the particular issue of Graves’ culpability with regard to the charge of robbery, but also the lone, additional instruction suggests a resolution to the jury’s predicament evidenced by their note. The jury was instructed as follows: “[A] person who knowingly or intentionally aids, induces or causes another person to commit an offense, commits that offense.”
Id. at 726-27 (footnote added).
We found the Graves procedure gave “the type of improper emphasis that the rule of Crowdus aims to alleviate.” Id. at 727. Even though there was a “legal lacuna” in the form of the omitted instruction on accomplice liability such that the trial court properly could provide the jury with the additional instruction, we held the trial court committed reversible error because it did not re-read the entire set of final instructions contemporaneously with the giving of the additional instruction.4 [4 The State acknowledges Graves, but appears to argue the Graves rule does not apply to the case before us because of our Supreme Court’s statement in Ronco v. State, 862 N.E.2d 257, 259 (Ind. 2007) that “[u]nder our recently adopted jury rules, Indiana trial courts have greater leeway to facilitate and assist jurors in the deliberative process, in order to avoid mistrials.” (Internal quotation omitted). We decline to hold that such greater “leeway” now permits a trial court to subject a defendant to a “prejudicial act of the trial court” in the form of the “giving of a special instruction to the jury in the middle of their deliberations,” Brannum, 267 Ind. at 57, 366 N.E.2d at 1184, or to the “great” potential for prejudice we noted in Graves, 714 N.E.2d at 726.]
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In the case before us, as in Graves, the jury was apparently not prepared to conclude its deliberations until its question was answered. The court gave it the additional instruction on accomplice liability without re-reading the rest of the instructions, and the jury then returned a guilty verdict. . . . As such an additional instruction tended to “emphasize that issue as being of primary importance and . . . to tell the jury what it ought to do,” Hero, 765 N.E.2d at 603, we must reverse and remand for a new trial.
KIRSCH, J., and NAJAM, J., concur.