                                                                                           FILED
                                                                                   Aug 31 2020, 10:34 am

                                                                                           CLERK
                                                                                       Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                         Curtis T. Hill, Jr.
South Bend, Indiana                                        Attorney General of Indiana

                                                           Jodi Kathryn Stein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robin Dale Kilgore Peppers,                                August 31, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A-CR-796
        v.                                                 Appeal from the
                                                           St. Joseph Superior Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        Jeffrey L. Sanford, Judge
                                                           Trial Court Cause No.
                                                           71D03-1807-F6-714



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                          Page 1 of 17
[1]   Robin Dale Kilgore Peppers (“Peppers”) appeals his conviction for

      intimidation1 as a Class A misdemeanor.2 He raises two issues, which we

      restate as:


                 I.       Whether the State presented sufficient evidence to sustain
                          his conviction; and


                 II.      Whether the trial court committed fundamental error in
                          the way it conducted voir dire.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On June 6, 2018, St. Joseph County Police Corporals Eric Dietrich (“Officer

      Dietrich”) and Neil Hoover (“Officer Hoover”) executed an arrest warrant on

      Peppers at his residence. Tr. Vol. 2 at 68-69, 77-78. The officers knocked on the

      front door of the residence, but Peppers did not respond. Peppers “crawl[ed]

      across the floor army style” toward the front door to lock it and then crawled

      out of sight. Id. at 70, 79-80. Officer Hoover located an unlocked window,

      opened it, and yelled into the house to announce the officers’ presence and to

      inform Peppers that they were there to arrest him. Id. at 80. After receiving no

      response from Peppers, Officer Hoover entered the residence through the




      1
          See Ind. Code § 35-45-2-1.
      2
        The jury found Peppers guilty of intimidation as a Level 6 felony, but the trial court entered a judgment of
      conviction on the jury’s guilty verdict as a Class A misdemeanor. Appellant’s App. Vol. 2 at 26, 30-31; Tr. Vol.
      2 at 141-42, 151.

      Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                                  Page 2 of 17
      window, checked the nearby rooms, and opened the front door to allow Officer

      Dietrich to enter. Id. at 70-71, 80-81. Officer Hoover had drawn his firearm for

      officer safety, but Officer Dietrich had not. Id. at 71, 80-81. Eventually,

      Peppers appeared around the corner from the basement door and was ordered

      to show his hands. Id. at 71, 81-82. When Peppers complied, Officer Hoover

      holstered his weapon and secured Peppers in handcuffs. Id. at 71-73, 81-82.

      Peppers’s step-daughter, who was in the basement, was then allowed to come

      upstairs. Id. at 71, 82-83. Once Peppers was arrested, he was cooperative with

      Officers Dietrich and Hoover, and the officers had no issues with him. Id. at

      73, 83, 85-86.


[4]   Approximately one month after Peppers was arrested, he created a video titled

      “To The Judges,” which was posted on a YouTube channel called “Death’s

      Clown.” Id. at 53-54, 61; State’s Ex. 1. In the video, Peppers threatened to kill

      “Big Country,” which is the nickname of Officer Dietrich, for pointing a gun in

      Peppers’s face and at his step-daughter.3 Id. at 52-53, 59, 64-65, 67, 69, 78, 104-

      05; State’s Ex. 1. The video post came to the attention of Assistant Chief Daniel

      Gebo of the Mishawaka Police Department, and an investigation began. Tr.

      Vol. 2 at 51, 53-54. Lieutenant Eric Beckham of the Mishawaka Police

      Department (“Lieutenant Beckham”) interviewed Peppers about the video, and

      Peppers stated that he was “venting” and seemed “very frustrated” but that he




      3
       As previously noted, Officer Hoover had his firearm drawn during the execution of the arrest warrant on
      Peppers while Officer Dietrich did not. Tr. Vol. 2 at 71, 80-81.

      Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                             Page 3 of 17
      did not want to hurt anyone. Id. at 107-08, 111; State’s Ex. 2. Police obtained a

      search warrant for Peppers’s cell phone. Tr. Vol. 2 at 54. Lieutenant Brandon

      Ruth of the Mishawaka Police Department (“Lieutenant Ruth”) performed the

      search of Peppers’s phone, which was also named “Death’s Clown.” Id. at 55-

      56, 59-61. Lieutenant Ruth had viewed the video on YouTube before he

      extracted it from Peppers’s phone and observed that the video extracted from

      Peppers’s phone was the same as the one posted on YouTube. Id. at 63-64;

      State’s Ex. 1. Peppers admitted to Lieutenant Beckham that people he did not

      even know had responded to his post of the video on social media. Tr. Vol. 2 at

      107. Officer Dietrich also viewed the video after St. Joseph County Police

      Detective Mario Cavurro (“Detective Cavurro”) saw the video and told Officer

      Dietrich about it. Id. at 66-67, 73.


[5]   On July 26, 2018, the State charged Peppers with one count of intimidation as a

      Level 6 felony. Appellant’s App. Vol. 2 at 220-21. The State amended the

      charging information twice before trial. Id. at 100-02, 203-04. The parties also

      submitted written questions for voir dire, and Peppers filed a motion to examine

      the jury panel. Id. at 103-11. Peppers submitted eighty-six questions for the

      prospective jurors, and the State submitted eight questions. Id. at 104-09, 110-

      11. On January 16, 2020, the trial court held a jury trial. Id. at 14, 30-31.


[6]   Pursuant to Indiana Trial Rule 47(D), which governs the examination of jurors,

      the trial court questioned the panel of prospective jurors, using some of the

      parties’ questions and some of its own. Tr. Vol. 2 at 10-38. At the conclusion of

      the trial court’s examination and the parties’ brief opening statements to the
      Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020        Page 4 of 17
jury, but before the parties selected who would serve on the jury, the following

exchange occurred:


        MS. BEACHKOFSKY: I do want to make a quick record of
        something else just for the record. Okay?


        THE COURT: You want to make a quick record? Okay. About
        what?


        MS. BEACHKOFSKY: That I filed a motion to voir dire the
        jury and there were several questions not asked.


        THE COURT: I think I answered that the last time. Didn’t you
        bring that up the last time?


        MS. BEACHKOFSKY: I did, but I’m preserving it for the
        record here.


        THE COURT: Okay. And my reading of Trial Rule 47 is this, is
        that you are -- have the right to question the jury, but it doesn’t
        necessarily have to be oral. That’s the way the Supreme Court
        has interpreted the rule. And you were given an opportunity to
        address the jury, and you were given an opportunity to submit
        questions. That’s the record I would make.


        MS. BEACHKOFSKY: I would say for the record that I did
        submit several questions --


        THE COURT: Well, actually you submitted [86] questions, and
        I think a lot of the questions were conditioning in nature and not
        appropriate to ask the jury.


        MS. BEACHKOFSKY: All [86]?

Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020       Page 5 of 17
              THE COURT: Uh-huh. And what questions that weren’t asked
              were already covered by my questions.


              MS. BEACHKOFSKY: I would note that the majority of the
              answers, if there were any that were given by the jury, were just
              head nods. Most of these people didn’t speak or didn’t say
              anything during the course of voir dire.


              THE COURT: If they wished to speak, they can raise their
              hand. I’ve had juries where nobody has raised their hand. I’ve
              had other juries where we’ve had quite a bit of response. You
              made your record, ma’am. Anything else that you want to say
              on that issue?


              MS. BEACHKOFSKY: Nothing. No, sir.


      Id. at 31-33. Following this exchange, Peppers’s counsel exercised three

      peremptory challenges. Id. at 33-36. She made no objection to the jury panel

      before it was sworn. Id. at 38. The jury ultimately found Peppers guilty of

      intimidation as a Level 6 felony. Appellant’s App. Vol. 2 at 30-31; Tr. Vol. 2 at

      141-42. On February 25, 2020, the trial court entered judgment of conviction as

      a Class A misdemeanor and sentenced Peppers to time served, 247 days.

      Appellant’s App. Vol. 2 at 26; Tr. Vol. 2 at 151. Peppers now appeals.


                                       Discussion and Decision

                                  I.       Sufficiency of the Evidence
[7]   Peppers argues that the evidence was insufficient to sustain his intimidation

      conviction. When we review the sufficiency of the evidence to support a


      Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020          Page 6 of 17
      conviction, we do not reweigh the evidence or assess the credibility of the

      witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.

      denied. We consider only the evidence most favorable to the trial court’s ruling

      and the reasonable inferences that can be drawn from that evidence. Lock v.

      State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in

      the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,

      875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is

      substantial evidence of probative value that a reasonable trier of fact could have

      concluded the defendant was guilty beyond a reasonable doubt. Wolf v. State,

      76 N.E.3d 911, 915 (Ind. Ct. App. 2017).


[8]   Peppers was convicted of Class A misdemeanor intimidation. Appellant’s App.

      Vol. 2 at 26. At the time Peppers committed the offense, Indiana’s intimidation

      statute provided, in pertinent part, that “[a] person who communicates a threat

      to another person, with the intent . . . that the other person be placed in fear of

      retaliation for a prior lawful act . . . commits intimidation, a Class A

      misdemeanor.” Ind. Code § 35-45-2-1(a)(2). The statute also provided that the

      offense was enhanced to a Level 6 felony if, “the person to whom the threat is

      communicated . . . is a law enforcement officer . . . .” Ind. Code § 35-45-2-

      1(b)(1)(B)(i).4 The statute defined “communicates” as follows:




      4
        The terms “threat” and “law enforcement officer” are also defined terms. See Ind. Code § 35-31.5-2-185(a)
      (defining “law enforcement officer”), Ind. Code § 35-45-2-1(d) (defining “threat” for purposes of Indiana
      Code section 35-45-2-1). Peppers does not argue that the State failed to prove that the content of the
      YouTube video was a threat or that Officer Dietrich was not a law enforcement officer.

      Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                              Page 7 of 17
       “‘Communicates’ includes posting a message electronically, including on a

       social networking web site (as defined in IC 35-31.5-2-307).” Ind. Code § 35-

       45-2-1(c).5 Thus, the State was required to prove beyond a reasonable doubt

       that Peppers communicated a threat to Officer Dietrich with the intent that

       Officer Dietrich be placed in fear of retaliation for a prior lawful act. Appellant’s

       App. Vol. 2. at 102.


[9]    Peppers limits his argument to whether the State failed to satisfy the

       communication element of the intimidation statute. He argues that Officer

       Dietrich’s viewing of the YouTube video five weeks after it was posted did not

       satisfy the communication element of the intimidation statute. The State

       maintains the evidence was sufficient to sustain Peppers’s conviction and that

       he knew or had good reason to believe that the YouTube video would reach

       Officer Dietrich.


[10]   It is well-established that a defendant need not speak directly with a victim to

       communicate a threat for purposes of Indiana Code section 35-45-2-1. E.B. v.

       State, 89 N.E.3d 1087, 1091 (Ind. Ct. App. 2017). Indeed, to communicate a

       threat for purposes of the offense of intimidation, the statement must be

       transmitted in such a way that the defendant knows or has good reason to

       believe the statement will reach the victim. Ajabu v. State, 677 N.E.2d 1035,

       1043 (Ind. Ct. App. 1997), trans. denied. See also B.B. v. State, 141 N.E.3d 856,




       5
           Indiana Code section 35-45-2-1 was subsequently amended by SECTION 17 of P.L. 66-2019.


       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                           Page 8 of 17
       861, n.4 (Ind. Ct. App. 2020) (noting that “communication of a threat may be

       made directly to the victim, or indirectly, such as through a news reporter,”

       (citing Ajabu, 677 N.E.2d at 1043)).


[11]   Peppers directs us to Ajabu, E.B., and J.T. v. State, 718 N.E.2d 1119 (Ind. Ct.

       App. 1999) in support of his position that he did not communicate a threat to

       Officer Dietrich by posting the YouTube video. In Ajabu, the defendant had

       made threats through the print, radio, and television media. Id. at 1037-38.

       The defendant sought reversal of his convictions for intimidation and argued

       that the person alleged to be threatened must be present for the threat to be

       communicated under the statute. Id. at 1042. We explained that

       communication was not limited to only those threats made directly to or in the

       presence of the threatened party. Id. We held that communication can be

       indirect and affirmed the conviction because the defendant had used means of

       communication that he “knew or had good reason to believe would reach” the

       victims. Id. at 1043.


[12]   In J.T., J.T. and a friend printed a document in their school library. 718 N.E.2d

       at 1121. The document contained a reference to sacrificing a fellow student in

       an occult ritual. Id. The librarian saw the document and reported it to her

       supervisors, who later alerted the student who was named in the document. Id.

       at 1121-22. A juvenile court determined J.T. was a delinquent child because,

       among other grounds, she committed an act that would have constituted

       intimidation if committed by an adult. Id. at 1122. This court reversed that

       portion of the adjudication, reasoning that there was no evidence that J.T. knew

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020       Page 9 of 17
       or had reason to believe that the document would reach the student named

       therein. Id. at 1123-24. Instead, J.T. merely printed the document with the

       expectation that the document would be returned directly to her. Id.


[13]   In E.B., E.B. was displeased with recent discipline he received at school, sent a

       text message to another student warning the second student to wear red the

       following Tuesday because E.B. “intended to shoot anybody who wasn’t

       wearing red.” 89 N.E.3d at 1089 (internal quotations omitted). E.B. also

       communicated to a third student a similar warning and told the third student to

       “tell the ones that he cares about.” Id. (citations omitted). E.B.’s sister

       overheard E.B. speaking on the phone regarding E.B.’s plan to shoot the

       assistant principal based on E.B.’s displeasure with his recent discipline. Id.

       Students shared this information with the school administrators, and law

       enforcement was notified. Id. The State alleged that E.B. was a delinquent

       child for committing two separate intimidation offenses: Count I related to

       E.B.’s specific threat against the assistant principal, pursuant to Indiana Code

       section 35-45-2-1(a)(2); and Count II related to E.B.’s communication for

       “interfering with the occupancy of the school” by sending a text message to a

       student that he would shoot anyone not wearing red, pursuant to Indiana Code

       section 35-45-2-1(a)(3). Id. at 1090-91. We reversed the portion of the

       adjudication under Indiana Code section 35-45-2-1(a)(2) on the basis that no

       evidence existed of the communicated threat to the assistant principal, and the

       State failed to prove that E.B. placed the assistant principal “in fear of

       retaliation for a prior lawful act.” Id. at 1091.


       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020           Page 10 of 17
[14]   Here, the evidence was sufficient that Peppers communicated a threat to Officer

       Dietrich. Unlike the defendants in J.T. and E.B., where we reversed portions of

       their adjudications due to the lack of evidence that the statements were

       communicated in ways that would reach their intended victims, Peppers posted

       a video on YouTube. Tr. Vol. 2 at 54, 59, 67, 73, 104-05.6 The video was

       created on Peppers’s phone, which he named “Death’s Clown,” and the video

       was posted on a YouTube channel of the same name. Id. at 63. While there is

       no specific evidence as to whether the YouTube video was listed as private or

       public, the testimony at trial revealed that Lieutenant Ruth viewed the video on

       YouTube before it was extracted pursuant to a search warrant from Peppers’s

       phone and that Officer Dietrich viewed the video after he was alerted to its

       presence by Detective Cavurro. Id. at 54, 63, 67, 73. In fact, Peppers admitted

       to Lieutenant Beckham during his interview regarding the video that he

       received feedback from “people he didn’t even know responding to the video on

       social media.” Id. at 107. Peppers’s use of YouTube to post his video is more

       similar to Ajabu where the defendant’s statement to the media was sufficient

       evidence of communication of a threat to the victim, even though the victim

       was not present when the defendant made the statement. Moreover, electronic

       communications are specifically covered under the intimidation statute. See

       Ind. Code § 35-45-2-1(c); McGuire v. State, 132 N.E.3d 438, 444, n.4 (Ind. Ct.




       6
        YouTube is an online video sharing platform that has over two billion users who daily view approximately
       one billion hours of video. http://youtube.com/yt/press/statistics.html (last visited August 23, 2020). The
       platform is viewed in over 100 countries and can be accessed in 80 languages. Id.

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020                             Page 11 of 17
       App. 2019) (observing that the intimidation statute “specifically contemplates

       threatening messages posted electronically”), trans. denied. See also

       Commonwealth v. Beasley, 138 A.3d 39, 46-47 (Pa. Super. Ct. 2016) (affirming

       Beasley’s conviction for making a terroristic threat by including a link on his

       Facebook page to a violent rap video he posted on YouTube in which he

       threatened to kill certain police officers and noting that Beasley “successfully

       and intentionally communicated his threat”), appeal denied; Holcomb v.

       Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 714-16 (2011) (affirming

       Holcomb’s conviction for knowingly communicating a written threat in

       violation of section 18.2-60(A)(1), Va. Code, by posting the threat on his

       MySpace profile). In light of the evidence presented at trial, the jury could

       reasonably infer that Peppers publicly posted the video and, as required under

       our precedent, that he knew or would have had good reason to believe that the

       video would reach Officer Dietrich. Therefore, the State presented sufficient

       evidence from which a reasonable jury could determine that the

       communication element of the intimidation statute was satisfied.


                                                  II.      Voir Dire
[15]   Peppers next contends that the trial court erred by failing to allow Peppers’s

       trial counsel to conduct the examination of prospective jurors. The State argues

       that Peppers has waived this issue by failing to submit additional questions for

       the jury after his motion to orally examine the prospective jurors was denied or

       to object to the jury panel before it was sworn, and that Peppers must show

       fundamental error. Appellee’s Br. at 13-14; Tr. Vol. 2 at 31-33, 38. We agree with

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020       Page 12 of 17
       the State that Peppers has waived this issue for review. See Miller v. State, 623

       N.E.2d 403, 412 (Ind. 1993) (noting that failure to object to the manner in

       which the jury was chosen resulted in waiver); Bardonner v. State, 587 N.E.2d

       1353, 1358 (Ind. Ct. App. 1992) (stating that the proper method to raise a

       challenge during voir dire is “a motion to strike or discharge the jury panel or

       [to] challenge the array” (citing Utterback v. State 261 Ind. 685, 310 N.E.2d 552

       (1974))). Fundamental error is an extremely narrow exception to the waiver

       doctrine that applies only when the error constitutes a blatant denial of basic

       due process principles that makes it impossible to receive a fair trial. Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014). A matter rising to the level of

       fundamental error is a matter that the trial court had a sua sponte duty to

       correct. Id.


[16]   Peppers argues that the trial court violated Indiana Trial Rule 47(D) by denying

       his counsel the right to question the prospective jurors and to ask follow-up

       questions of the prospective jurors, which he asserts denied him the right to a

       fair trial. The State maintains that the trial court did not violate Indiana Trial

       Rule 47(D) and that no error, fundamental or otherwise, occurred.


[17]   Indiana Trial Rule 47(D) provides, in pertinent part, as follows:


               The court shall permit the parties or their attorneys to conduct
               the examination of prospective jurors, and may conduct
               examination itself. The court’s examination may include
               questions, if any, submitted in writing by any party or attorney.
               If the court conducts the examination, it shall permit the parties
               or their attorneys to supplement the examination by further

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020           Page 13 of 17
               inquiry. . . . The court may prohibit the parties and their
               attorneys from examination which is repetitive, argumentative,
               or otherwise improper but shall permit reasonable inquiry of the
               panel and individual prospective jurors.


[18]   Trial courts have broad discretionary power in regulating the form and

       substance of voir dire. Logan v. State, 729 N.E.2d 125, 133 (Ind. 2000). The

       decision of the trial court will be reversed only if there is a showing of a

       manifest abuse of discretion and a denial of a fair trial. Id. This will usually

       require a showing by the defendant that he was in some way prejudiced by the

       voir dire. Id. In Gibson v. State, 43 N.E3d 231, 238 (Ind. 2015), the Indiana

       Supreme Court discussed voir dire and explained that its purpose is:


               [T]o ascertain whether prospective jurors can render an impartial
               verdict based upon the law and the evidence, Von Almen v. State,
               496 N.E.2d 55, 59 (Ind. 1986), and “weed out” those who show
               they cannot be fair to either side. Burris v. State, 465 N.E.2d 171,
               179 (Ind. 1984). Thus, the parties may “inquire into jurors’
               biases or tendencies to believe or disbelieve certain things about
               the nature of the crime itself or about a particular line of
               defense.” Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981)
               (finding no error where jurors were asked whether they would
               disbelieve a witness that entered into a plea bargain). . . .


               But, questions should be limited to “testing the capacity and
               competency of prospective jurors.” Skaggs v. State, 438 N.E.2d
               301, 304 (Ind. Ct. App. 1982). Those that “seek to shape the
               favorable jury by deliberate exposure to the substantive issues in
               the case” are not permitted. Davis v. State, 598 N.E.2d 1041,
               1047 (Ind. 1992) (affirming trial court’s disallowing defense
               counsel from essentially asking prospective jurors “how they
               would vote in the present case”).

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020        Page 14 of 17
[19]   Here, as permitted under Indiana Trial Rule 47(D), the trial court conducted its

       own examination of the prospective jurors, which was supplemented by

       questions that had been submitted by the parties. Tr. Vol. 2 at 10-31; Appellant’s

       App. Vol. 2 at 104-11. Indiana Trial Rule 47(D) does not mandate a specific

       form of supplemental inquiry by the parties. See White v. State, 263 Ind. 302,

       306, 330 N.E.2d 84, 86-87 (1975) (noting that the portion of what was then

       Indiana Trial Rule 47(A) “cannot be read to require a particular form; such as,

       verbal questioning” and stating that the trial court properly exercised its “broad

       discretionary power to restrict interrogation to proper matters by regulating the

       form as well as the substance of the interrogation.”); Tewell v. State, 264 Ind. 88,

       93-94, 339 N.E.2d 792, 796 (1976) (same). The trial court did not ask all of

       Peppers’s eighty-six questions nor did it ask all of the State’s eight questions,

       but it permitted the parties to address the jury with a brief opening statement

       concerning the nature of the case, which Peppers used to tell the jury that the

       case was about free speech and the right to voice political speech. Tr. Vol. 2 at

       10-31; Appellant’s App. Vol. 2 at 104-11.


[20]   We are mindful that Indiana Trial Rule 47(D) states that the trial court “shall

       permit the parties or their attorneys to conduct the examination” and that if the

       trial court conducts the examination it “shall permit the parties or their

       attorneys to supplement the examination court’s examination.” Indeed, in

       Logan, the Indiana Supreme Court explained that although it was error under

       Indiana Trial Rule 47(D) for the trial court to “not permit Logan or his attorney

       to directly question prospective jurors concerning their views on life without


       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020        Page 15 of 17
       parole,” the error was harmless because Logan could not show prejudice. 729

       N.E.2d at 133-34. The Court noted that each juror was questioned regarding

       his or her ability to base a sentencing recommendation on the law and the

       evidence. Id. at 133. The trial court’s questioning of the jurors sought to reveal

       any bias and determine whether the jurors could render a fair and impartial

       recommendation, which is the purpose of voir dire. Id. (citation omitted). It

       further explained that Logan did not indicate what questions he would have

       asked and did not explain why the trial court’s procedure of asking questions

       tendered by the parties was inadequate for purposes of empaneling a fair and

       impartial jury. Id. The Court added that Logan failed to show that the trial

       court’s procedure adversely impacted his ability to employ his peremptory

       challenges or his challenges for cause and did not allege that any specific juror

       should have been removed and was not. Id.


[21]   Here, Peppers focuses on the quantity of his questions that went unasked, see

       Appellant’s Br. at 13-15, 17-18, but he does not suggest what his verbal

       supplement could have produced that could not have been achieved through the

       written questions both parties submitted nor does he specify which of his

       questions the trial court should have asked the prospective jurors. See Logan,

       729 N.E.2d at 133; Bradberry v. State, 266 Ind. 530, 535, 364 N.E.2d 1183, 1186

       (1977) (finding no error in the trial court’s conduct of voir dire where counsel

       were not permitted to orally voir dire the jury and the defendant failed to state

       how he was harmed by the trial court’s rejection or modification of his

       questions). Peppers attempts to show that the trial court’s alleged error was

       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020         Page 16 of 17
       prejudicial because two prospective jurors had family who were police officers.

       Appellant’s Br. at 17. Peppers overlooks the fact that the trial court asked both

       prospective jurors whether they could be fair and impartial, and although both

       indicated that they could, neither of those individuals were chosen to sit on the

       jury. Id. at 18, 38. Peppers was able to exercise his peremptory challenges, and

       there is no indication that the jurors selected or the alternate were not able to

       apply the law and the facts fairly and impartially in this case. Id. at 33-36. See

       Logan, 729 N.E.2d at 133 (“[T]he Constitution presupposes that a jury selected

       from a fair cross-section of the community is impartial, regardless of the mix of

       individual viewpoints actually represented on the jury, so long as the jurors can

       conscientiously and properly carry out their sworn duty to apply the law to the

       facts of the particular case.” (citations omitted)). Peppers has failed to show

       how the trial court’s voir procedure led to a jury panel that was not fair or

       impartial, and we find no error, fundamental or otherwise, in the trial court’s

       conduct of voir dire.


[22]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-796 | August 31, 2020        Page 17 of 17
