## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : DEBORAH MARKISOHN GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

JORGE HENRIQUEZ, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A02

- 1201

- CR

- 6 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc Rothenberg, Judge Cause No. 49F09

- 1006

- FD

- 051001

August 22, 2012 OPINION
- FOR PUBLICATION SHARPNACK, Senior Judge2 STATEMENT OF THE CASE Jorge Henriquez appeals his conviction of resisting law enforcement, a Class D felony. Ind. Code § 35

- 44

- 3

- 3 ( 2006 ). We affirm.
ISSUE Henriquez presents one issue for our review, which we restate as: whether Henriquez’s constitutional right to a fair and impartial jury was violated by the alleged improper influence of an alternate juror.

FACTS AND PROCEDURAL HISTORY In June 2010, Henriquez was charged with resisting law enforcement and failure to stop after an accident with an unattended vehicle. A jury trial was held in November 2011 only as to the charge of resisting law enforcement. At some point during jury deliberations, the bailiff infor med the court that she heard someone in the jury room say something to the effect of “you need to be able to live with your decision

. ” Tr. p. 220. The bailiff indicated that she believed the voice was that of the alternate juror. The judge and counsel d iscussed the appropriate w ay to deal with the situation, and the a lternate juror was called into the courtroom. The judge instructed the alternate juror that he was not to take part in the deliberations or influence the jury in any way. The alternate jur or indicated that he understood that he was not to communicate with the jury, and he was sent back to the jury room.3

Following deliberations, t he jury returned a verdict of guilty. Henriquez was sentenced to 365 days with 357 days suspended, and he was p laced on probation for sixty days. It is from this conviction that he now appeals.
DISCUSSION AND DECISION Henriquez contends that his constitutional right to a fair and impartial jury was violated by the failure of the trial court to “adequately ascerta in if the alternate [juror] had engaged in deliberations.” Appellant’s Br

. p. 10. The State observes, and Henriquez concedes, that he did not object to this alleged error at trial. Thus, Henriquez’s failure to object results in waiver of the issue on ap peal.
See Beeler v. State , 959 N.E.2d 828, 830 (Ind. Ct. App. 2011) ( sta ting that issue is waived for appeal if not objected to at trial ), trans. denied

. Seeking to avoid procedural default, Henriquez claims that the trial court’s handling of the situati on with the alternate juror constitutes fundamental error. The mere fact that error occurred and that it was prejudicial does not satisfy the fundamental error rule; rather, the doctrine of fundamental error is only available in egregious circumstances. Dickerson v. State , 957 N.E.2d 1055, 1057 (Ind. Ct. App. 2011) , trans. denied

. Likewise, it is not enough, in order to invoke this doctrine, to urge that a constitutional right is i nvolved. Id. To show fundamental error, a defendant must
demonstrate err or that caused actual and substantial disadvantage, infecting and tainting the entire proceeding. Id. In other words, the error must so prejudice the rights of the defendant as to make a fair trial impossible. Id.4

“ A defendant seeking a new trial becau se of juror misconduct must show that the misconduct (1) was gross and (2) probably harmed the defendant. ” Griffin v. State , 754 N.E.2d 899, 901 (Ind. 2001), clarified on reh’g , 763 N.E.2d 450 ( 2002). This Court review s the trial court ’ s determination on this issue for an abuse of discretion, with the appellant having the burden of show ing that the misconduct meets the prerequisites for a new trial. Id. Henriquez cites Lindsey v. State , 260 Ind. 351, 295 N.E.2d 819 (1973) , in support of his argument. I n Lindsey , the local newspaper published an article during Lindsey’s burglary trial alleging a rape in connection with the burglary , although Lindsey was not charged with rape; reporting a prior commitment of Lindsey for an attack of another woman several years earlier , although this information was not in evidence ; and reporting identification of Lindsey from police mug files by the prosecuting witness , although the witness had testified that she could not identify Lindsey from police photographs. Lindsey filed a motion for mistrial, which was denied by the trial court. The trial proceeded to a verdict of guilty, after which the court conducted an examination of the jury regarding the newspaper article. From this examination it was disclosed that some of the jurors had had no exposure to the article but that several had had exposure that varied from mere awareness of the publication to knowledge from having read a portion of it. In addition, there were two jurors who had read the entire article. Only th ese two jurors were questioned regarding whether their exposure had influenced their decision.5

They stated that they were not influenced by the article, and the verdict was permitted to stand. On appeal, our Supreme Court held that the failure of the trial court to take remedial action at the proper time violate d Lindsey’s constitutional right to a fair trial.
Id. at 822. The Court stated that upon a suggestion of improper and prejudicial publicity, the trial court should make a determination as to the likelihood of resulting prejudice based upon both the content of the publication and the likelihood of a juror having been exposed to it. Id. at 824. If the risk of prejudice appears substantial , the court should interrogate the jury as a whole to de termine who has been exposed. Id. The Court further instructed that if there has been no exposure, the trial court should then instruct upon the hazards of exposure an d the necessity o f avoiding exposure to extrajudicial information concerning the case. Id. If any of the jurors have been exposed, they must be individually interrogated by the court outside the presence of the other ju rors to determine the degree and effect of the exposure; each such juror should then be individually admonished. Id. Aft er all exposed jurors have been individually interrogated and admonished, the jury should be assembled and collectively admonished. Id. Finally, the Court directed that if the defendant deems such action insufficient to remove the peril, he should move f or a mistrial. Id. Here, Henriquez asserts that , pursuant to the dictates of Lindsey , the alleged conduct of the alternate juror imposed upon the trial court a duty to determine if the alternate juror had engaged in deliberations by interrogating the alt ernate and the regular6

jury members. W hile we acknowledge the Lindsey C ourt’s instruction that the trial court should make a determination as to the likelihood of resulting prejudice when there has been a sugges tion of improper jury influence , s ee id. at 824, we are also mindful of the remainder of the C ourt’s instruction. That is, the trial court is obligated to interrogate the jury only if the risk o f prejudice appears substantial, not merely imaginary or remote. Id.
In Agnew v. State , 677 N.E.2d 58 2 (Ind. Ct. App. 1997), trans. denied , a panel of this Court acknowledged the procedure set forth in Lindsey but noted that if the trial court, within its discretion, determines that the jury’s exposure to prejudicial information
does not raise a substanti al risk of prejudice, it has no du ty to interrogate th e jurors or to take further remedial action. Id. at 584. The allegedly prejudicial occurrence in Agnew took place when, during deliberations, the jury asked to review the testimony of both Agnew and t he victim. The jury was brought back into the courtr oom to hear the taped testimony. The victim was also present in the courtroom for the replaying of the testimony, and she could be heard sobbi ng and crying during the replaying o f Agnew’s testimony. Th e trial court subsequently denied both Agnew’s motion for mistrial and motion to correct error based upon the victim’s conduct and stated that it did not find the victim’s conduct to be disruptive. Id. In affirming the trial court, this Court noted the

t rial court’s determination that the victim’s behavior presented no risk of prejudice. Id.
We find Henri v. Curto , 908 N.E.2d 196 (Ind. 2009) , to be instr uctive as well. In
Henri , it was claimed that the alternate juror used noises and gestures to commun icate with the regular jurors during deliberations and to interrupt deliberations during7

statements favorable to Henri’s case. In addition, during deliberations the alternate juror paced and got on the floor and began exercising, causing other jurors to l augh. Our Supreme Court determined that while the alleged behavior of the alternate was disappointing and immature, it did not rise to the level of gross misconduct that would be injurious to Henri. Id. at 204. The facts here are readily distinguishable from those in Lindsey and are more akin to the facts in Henri . During deliberations in the instant case, the bailiff reported to the court that she had heard someone in the jury room say, in a “raised voice,” something to the effect of “you need to be ab le to live with your decision.” Tr. p. 220. The bailiff
further indicated to the court her belief that the voice she heard was that of the alternate juror. Upon receiving this information, the court asked the parties how they wanted to proceed. Defense counsel suggested bringing the jury into the courtroom and reminding them that the alternate is not to deliberate. Defense counsel also commented that “juries tend to monitor themselves pretty well” and that if the alternate is trying to deliberate, the other jurors would stop him or bring it t o the court’s attention. Id. at 221. The court then brought the alternate juror into the courtroom and advised him that he was not to deliberate, take part in the deliberations, influence the jury, or communicate with the jury in any way. Further, at the request of defense counsel, the court admonished the alternate not to speak with the jury about this current communication with the court. The alternate juror indicated he understood and agreed. Defense counsel raised no objection to the trial court’s course of action or to the admonishments it gave the alternate juror.8

From these facts i t is clear that the trial court , in its proper discretion, determined that the alternate’s alleged conduct posed only a remote risk of prejudice , if any at all. Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s
discretion and, t hus, find no error, fundamental or otherwise. Moreover, in seeking a new trial based upon juror misconduct, Henriqu ez has not met his burden of showing that the alleged misconduct was gross and probably injurious to him. See Griffin , 754 N.E.2d at 901.
CONCLUSION Based upon the foregoing, we conclude that it was not error for the trial court to not interrogate the ju rors or take other remedial action. Henriquez’s claim of
fundamental error fails. Affirmed. BAKER, J., and BRADFORD, J., concur.