Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Karen M. Heard

Vanderburgh County Public Defender

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sean M. Keith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 13, 2018

Court of Appeals Case No.

18A-CR-1129

Appeal from the Vanderburgh 

Circuit Court

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No. 

82C01-1712-F6-7614 

Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 2 of 12

Case Summary

[1] Sean Keith represented himself at trial and was convicted of residential entry as 

a Level 6 felony. He now appeals, arguing that the trial court should have 

stricken a biased person from the jury, done more to admonish the jury after 

sustaining an objection, and excluded certain testimony. We affirm.

Facts and Procedural History 

[2] On the morning of December 7, 2017, Keith’s sister, Casey, and her fiancé, 

Jerry Thompson, were sitting in their house in Evansville, while their two 

young children slept. While it was still dark outside, Keith came to their house 

and “was freaked out . . . .” Tr. Vol. II p. 53. Casey and Thompson, who was 

best friends with Keith, “got [Keith] calmed down.” Id. At around 7:15 a.m., 

Casey left for work at KFC, and Keith stayed at the house with Thompson. 

Once Casey left, Keith’s “scaredness came back.” Id. Thompson later said that 

he felt “very intimidated” and asked Keith to leave. Id.

[3] After Keith left, Thompson texted Casey, “I believe I [am] fixing to die.” Id. at 

54. Thompson also called his friend and neighbor, Brian McDaniel, and told 

him that he needed him to come over and stand-by while he got his children 

ready to go to KFC. Thompson later testified that he wanted “to remove 

[himself] from the situation so that nothing could progress any further.” Id.

After getting off the phone with Thompson, McDaniel grabbed his handgun 

and went to Thompson’s house.
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[4] Once McDaniel arrived, Thompson put a chair under the knob of the front door 

and asked McDaniel to keep an eye out for Keith while he began waking up his 

children and getting them ready to leave. About twenty minutes later, Keith 

knocked on the front door of the house. Thompson removed the chair and 

opened the door. After he saw that it was Keith, Thompson quickly shut the 

door. Almost immediately after Thompson shut the door, the door flew open 

and Keith came inside the house. When Keith entered the house, he appeared

“shifty . . . [and] aggressive” and had a knife in his hands. Id. at 56. Keith 

asked Thompson, “[I]s this your team[?],” and then raised the knife in the air. 

Id. at 57. Once Keith raised the knife, McDaniel drew his gun, pointed it at 

Keith, and told Keith to leave. Keith backed out the door and left Thompson’s 

house. After Keith left, Thompson, his children, and McDaniel were able to 

get out of the house and headed straight to KFC. On the way, Thompson 

called police and met an officer at a nearby gas station.

[5] After meeting up with the officer and dropping off the children with Casey at 

KFC, Thompson and McDaniel returned to the house. They were

accompanied by police because they were unsure where Keith was. Once at the 

house, officers took various pictures of the house, including pictures of the 

damaged door frame. Later, officers located Keith and arrested him. After 

being read his Miranda rights, Keith told officers that “he had tripped out” and 

that “he had had a knife.” Id. at 123. 

[6] On December 12, the State charged Keith with residential entry as a Level 6 

felony. On March 8, 2018 (the day before his trial), Keith asked to represent 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 4 of 12

himself at trial because he no longer wanted his appointed attorney to serve as 

his counsel. The trial court advised Keith of the dangers of proceeding pro se 

and inquired into his educational background. Ultimately, the trial court 

granted Keith’s request to represent himself. The next morning, the trial court

once again warned Keith that even though he was representing himself, he 

would be held to the same standards as attorneys, “including the rules of trial 

procedure and the rules of evidence.” Id. at 4. The trial court also told Keith 

that his “failure to make proper or timely objections will waive any error for 

appeal.” Id. Keith confirmed he understood all the trial court’s warnings and 

that he still wished to represent himself. The trial court then explained the 

process of voir dire, including that Keith would have five peremptory strikes.

[7] During the State’s voir dire, one of the potential jurors expressed an opinion 

that “so many defendants in our country are under-represented and that 

punishments are so harsh and there are too many incarcerations in regard to 

demographics[.]” Id. at 32. After this opinion was expressed, the following 

colloquy ensued:

The State: . . . Seeing some heads, some. Yes.

Juror:1 No I’m not responding to that, I’m responding to 

the fact that my son is a law enforcement officer.

 

1 The word “juror” is used in the transcript where the potential juror who was speaking was not identified.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 5 of 12

The State: Yes.

Juror: And has been for 20 years, so I am very pro LEO. I 

also worked in, I was a nurse in the Marion County 

Jail for six years, so I might have very skewed 

opinions on criminal cases, some criminal cases.

The State: So, based on your experience and the relationship 

you have with your son and your career, are you 

going to be able to be fair and impartial to the State 

and to Mr. Keith?

Juror: I really can’t say that I can be.

The State: And that’s an honest answer, that’s all we’re 

looking for. Anybody else feel that way, not 

necessarily the law enforcement relationship but 

perhaps a similar relationship to you. [Juror B.], 

similar idea that you have opinions about the 

criminal justice system in general and incarceration 

and that might skew you one way or the other.

Juror: Separate it, yeah.

The State: [Juror G.]?

[Juror G.]: My brother is incarcerated right now for a very long 

time so, and I don’t feel a lot of his, the experience 

in the court for him was very fair on his behalf.

The State: So, I’ll ask you the same question that I asked of 

[Juror B.] and I asked of [Juror H.], are you going to 

be able to separate that experience from what you 

hear and see in the courtroom today?
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[Juror G.]: I don’t know.

Id. at 34-35. After the State finished its questioning of the potential jurors, 

Keith thanked the jurors for being there but declined to ask any questions. 

Keith did not use any of his five peremptory strikes or challenge any of the 

potential jurors for cause. See Appellant’s Br. pp. 15-16. After the State

submitted its peremptory strikes, three potential jurors were stricken, and two 

others were released because they were not needed to empanel the required sixperson jury.

2

 Juror B. was seated on the jury, but not Juror G. or Juror H.

[8] During opening statements, Keith told the jury that “[a] lot of things in these 

police reports I have contradict [themselves], but the witness Jerry Thompson is 

in the back, if he says I did it then I’ll just say I did it, so that’s all I got to say.” 

Tr. Vol. II p. 50. Thompson testified that Keith’s behavior on the morning of 

December 7, 2017, made him feel “very intimidated” and that he “couldn’t see 

[his] best friend’s pupils, [Keith’s] eyes were black solid[.]” Id. at 53. 

Thompson also testified that at the point when Keith’s attitude changed, Keith

was looking for a firearm. Thompson also said that after Keith left he texted 

Casey that he “believe[d] [he] was fixing to die.” Id. at 54. Keith did not make 

any objections during Thompson’s testimony. McDaniel testified that when 

Thompson called him to come over, Thompson told him that “he thought 

[Keith] was trying to kill him, that [Keith] had come by, walked around the 

 

2

For a Level 6 felony, the jury consists of six qualified jurors. Ind. Code § 35-37-1-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 7 of 12

house in front of [Thompson’s] kids with a knife at his throat.” Id. at 83. Keith 

objected to this statement as irrelevant to “[him] coming in the home.” Id. The 

trial court sustained the objection and asked the State to ask another question. 

Shortly thereafter, the State asked McDaniel why he brought his gun to 

Thompson’s house, and McDaniel responded, “Because [Thompson] said that 

[Keith] had come by with a knife and was threatening to come back and kill 

him.” Id. at 84. Keith objected to this statement as irrelevant to the charge of 

residential entry, and the trial court sustained the objection. After this second 

objection, the trial court told the jury “to disregard the last portion of the 

statement and not to consider it, and that would be the portion of the statement 

indicating the threat to his life.” Id. at 85. At the conclusion of the trial, the jury 

found Keith guilty of residential entry.

[9] Keith now appeals.

Discussion and Decision

[10] Keith makes three arguments on appeal. First, Keith contends that the trial 

court should have stricken a biased person from the jury. Second, Keith argues

that the trial court should have done more to admonish the jury after sustaining 

his objections to McDaniel’s testimony. Third, Keith asserts that the trial court 

should have excluded portions of Thompson’s testimony. 
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I. Biased Juror

[11] First, Keith argues that Juror B. was the person who said “I can’t really say that 

I can be” when asked if they could be fair and impartial and that the trial court 

therefore should not have allowed Juror B. to sit on the jury. Id. at 34. Keith 

did not use any peremptory strikes to remove Juror B. nor did he challenge her 

for cause. See Appellant’s Br. p. 16. Recognizing that this resulted in a waiver 

of the issue for purposes of appeal, Keith contends that the trial court’s failure 

to strike Juror B. constituted fundamental error. Fundamental error is an 

extremely narrow exception to the waiver rule where the defendant faces the 

heavy burden of showing that the alleged errors are so prejudicial to the 

defendant’s rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d 

663, 668 (Ind. 2014), reh’g denied. Stated another way, to prevail under our 

fundamental-error analysis, the defendant must show that, “under the 

circumstances, the trial judge erred in not sua sponte raising the issue because 

[the] alleged errors (a) constitute clearly blatant violations of basic and 

elementary principles of due process and (b) present an undeniable and 

substantial potential for harm.” Id. (internal quotations omitted). 

[12] Keith’s argument fails from the start because he has not shown that Juror B. 

was the person who said “I can’t really say that I can be” when asked if they

could be fair and impartial. Tr. Vol. II p. 34. Keith reasons that Juror B. was 

the person who said “I can’t really say that I can be” because the State 

identified Juror B.’s by name shortly after this statement was made. The State 

argues that Keith has not shown that Juror B. was the person who made the 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 9 of 12

statement showing bias. The State asserts that Juror B.’s name appears after 

this statement because the State was turning to Juror B. to hear her opinion on 

what it means to be fair and impartial, not because Juror B. had just made the 

statement “I can’t really say that I can be.” See Appellee’s Br. p. 14. 

[13] Looking at where this statement appears in the exchange, the State appears to 

be correct. Here, again, is the entire exchange:

Juror: . . . I’m responding to the fact that my son is a law 

enforcement officer.

The State: Yes.

Juror: And has been for 20 years, so I am very pro-LEO. I 

also worked in, I was a nurse in the Marion County 

Jail for six years, so I might have very skewed 

opinions on criminal cases, some criminal cases.

The State: So, based on your experience and the relationship 

you have with your son and your career, are you 

going to be able to be fair and impartial to the State 

and to Mr. Keith?

Juror: I really can’t say that I can be.

The State: And that’s an honest answer, that’s all we’re 

looking for. Anybody else feel that way, not 

necessarily the law enforcement relationship but 

perhaps a similar relationship to you. [Juror B.],

similar idea that you have opinions about the 

criminal justice system in general and incarceration 

and that might skew you one way or the other.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018 Page 10 of 12

Juror: Separate it, yeah.

The State: [Juror G.]?

[Juror G.]: My brother is incarcerated right now for a very long 

time so, and I don’t feel a lot of his, the experience 

in the court for him was very fair on his behalf.

The State: So, I’ll ask you the same question that I asked of 

[Juror B.] and I asked of [Juror H.], are you going to 

be able to separate that experience from what you 

hear and see in the courtroom today?

[Juror G.]: I don’t know.

Tr. Vol. II pp. 34-35 (emphasis added). Read in context, Keith has failed to 

show that Juror B. made the statement in question because of where and how 

her name came up in the discussion. Keith has failed to establish fundamental 

error. 

II. Witness Testimony

[14] Next, Keith argues that (1) the trial court should have done more to admonish 

the jury after sustaining his objections to portions of McDaniel’s testimony and 

(2) the trial court should have excluded Thompson’s description of Keith’s eyes 

as well as his testimony that he felt intimidated, that Keith was looking for a 

firearm, and that Thompson texted his fiancée that he thought Keith was 

“fixing” to kill him. Appellant’s Br. pp. 18-24. However, Keith did not request

any additional admonishment regarding McDaniel’s testimony nor did he 
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object to Thompson’s testimony. As such, he has waived review of these issues

for the purposes of appeal. Merritt v. State, 99 N.E.3d 706, 710 (Ind. Ct. App.

2018). (parties are required to ask for admonishment from the court—not to 

have the court act sua sponte), trans. denied; see also Ind. Evidence Rule 105; 

Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (failure to object to the 

admission of evidence at trial normally results in waiver). 

[15] To avoid waiver, Keith would have to establish that the trial court committed 

fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g

denied. But Keith has not made a fundamental-error argument as to either 

McDaniel’s testimony or Thompson’s testimony. See Appellant’s Br. pp. 16-24. 

In any event, we do not find fundamental error. First, during opening 

statements, Keith told the jury that “if [Thompson] says I did it then I’ll just say 

I did it.” Tr. Vol. II p. 50. Furthermore, there is substantial other evidence, 

unchallenged by Keith, that he was acting erratically and violently. Keith was 

“freaked out” when he first arrived at Thompson’s house and became “scared”

after Casey left. Id. at 53. Then Keith left Thompson’s house, came back, and 

surprised Thompson, who shut the door immediately after realizing it was 

Keith. Thompson and McDaniel both testified that Keith forcibly opened the 

door to get inside the house. Thompson testified that once Keith was back 

inside the house, Keith appeared “shifty . . . [and] aggressive” and had a knife. 

Id. at 56. Photographs taken after the incident showed damage to the door 

through which Keith entered the house. Finally, after he was arrested Keith 

told officers that he “tripped out” at Thompson’s house and “had a knife.” Id.
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at 123. In light of this evidence, we cannot say that the jury’s exposure to some 

additional evidence of the same sort made “a fair trial impossible.” Ryan, 9 

N.E.3d at 668. 

[16] Affirmed.

Riley, J., and Kirsch, J., concur.