                                                                                  FILED
                                                                             Feb 21 2020, 6:49 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                            Curtis T. Hill, Jr.
      Bargersville, Indiana                                      Attorney General of Indiana
                                                                 Matthew B. MacKenzie
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Clinton Loehrlein,                                         February 21, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-737
              v.                                                 Appeal from the Vanderburgh
                                                                 Superior Court
      State of Indiana,                                          The Honorable Robert J. Pigman,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 82D03-1701-MR-425



      Mathias, Judge.


[1]   Following a jury trial in Vanderburgh Superior Court, Clinton Loehrlein

      (“Loehrlein”) was convicted of one count of murder, two counts of Level 1

      felony attempted murder, two counts of Level 3 felony aggravated battery, and

      one count of Class A misdemeanor resisting law enforcement. Loehrlein

      appeals and presents two issues for our review, which we restate as: (1) whether
      Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                            Page 1 of 21
      the trial court erred by denying Loehrlein’s motion to set aside the jury verdict

      based on juror misconduct, and (2) whether the trial court abused its discretion

      by refusing Loehrlein’s proffered instruction defining the term “wrongfulness”

      in the insanity defense statute. Concluding that the trial court did not err by

      refusing Loehrlein’s tendered instruction but that the trial court did err by

      denying Loehrlein’s motion for a new trial based on the gravity of the juror’s

      misconduct, we reverse and remand for a new trial.


                                  Facts and Procedural History
[2]   In January of 2017, Loehrlein was under stress relating to his purchase of a

      second home and was suffering from insomnia and other stress-related

      problems. On January 22, 2017, Loehrlein decided that the solution to his

      problems was to kill his wife and their two daughters, who still lived at home.

      Loehrlein walked through his home and shot his wife Sherry in the back, shot

      his daughter Cynthia in the stomach, and shot his daughter Nicole, who was

      hiding in the shower, in the arm. When the injured Cynthia attempted to flee

      the house, her father chased her to the neighbor’s porch and stabbed her

      repeatedly. When a neighbor saw Loehrlein, he ran back home. And when the

      police arrived, Loehrlein locked himself in the house and stabbed himself in the

      stomach and cut his wrists. He physically struggled with the police when they

      entered the house and apprehended him, claiming that he wanted to die. Sherry

      died as a result of her injuries, but Cynthia and Nicole survived.


[3]   Loehrlein was treated at the hospital, where he initially claimed that he did not

      remember attacking his family, but his memory slowly seemed to recover. He
      Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020      Page 2 of 21
      later claimed that he wanted to kill his family so that they would go to heaven,

      then kill himself so he could join them.


[4]   On January 24, 2017, the State charged Loehrlein with one count of murder,

      two counts of Level 3 felony aggravated battery, and one count of Class A

      misdemeanor resisting law enforcement. The State also filed a sentencing

      enhancement based on the use of a firearm. Loehrlein filed a notice of an

      insanity defense. A five-day jury trial commenced on August 27, 2018. At trial,

      Loehrlein testified that he did not plan the attack on his family, nor did he

      consider whether it was criminal. Instead, he testified that it seemed the right

      thing to do at the time, as he “wanted to take them all to Heaven and [he]

      would be there with them.” Tr. Vol. 4, p. 110.


[5]   Both court-appointed expert witnesses testified that, in their opinions, Loehrlein

      was not suffering from a mental disease or defect and could appreciate the

      wrongfulness of his actions at the time of the attacks. Loehrlein’s expert

      witness, Dr. Tracy Gunter (“Dr. Gunter”) testified that Loehrlein suffered from

      a mental disease or defect that left him unable to appreciate the wrongfulness of

      his behavior at the time of the attack on his family. However, when asked on

      cross-examination if “there’s no doubt that [Loehrlein] viewed what he did as

      criminally wrong,” Dr. Gunter testified, “I think that’s correct.” Tr. Vol. 4, p.

      67. The jury found Loehrlein guilty as charged.


[6]   After the trial, but before sentencing, defense counsel received information that

      the jury forewoman, L.W., who is a licensed attorney, had provided a false


      Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020      Page 3 of 21
      answer, under oath, on the jury questionnaire. Specifically, Question 15 asked

      the potential jurors, “Have you, any of your immediate family members, or a

      close friend been charged with or convicted of a crime? If yes, who, when, what

      & where:” Appellant’s Confidential App. Vol. 3, p. 31. L.W. answered this

      questioned by writing: “N/A,” meaning “not applicable.” Id. In truth, however,

      L.W. had been charged on April 30, 2012, with domestic battery against her

      husband. See id. at 133 (information charging L.W. with domestic battery).

      Based on L.W.’s untruthful responses, Loehrlein filed, on September 19, 2018,

      a verified motion to set aside the jury’s verdict and for mistrial based on jury

      misconduct.


[7]   L.W. was deposed on November 9, 2018. At the deposition, L.W. testified that

      she was a licensed attorney with almost twenty years of experience. She mostly

      practiced civil law but had represented clients in misdemeanor cases, including

      cases of driving while intoxicated. She was also familiar with the jury selection

      process. When asked about Question 15 on the jury questionnaire, and her

      response of “N/A,” L.W. initially insisted that she had not been criminally

      charged and that the question was therefore not applicable. She claimed that

      she had “never been charged, never been read rights. I’ve never been

      convicted.” Id. at 100. When asked again if she had ever been charged with a

      crime, L.W. answered, “I mean, there was that little case that was false

      anyway, got dismissed, so it didn’t apply because it was dismissed.” Id. L.W.

      then claimed that to be charged with a crime “means you’re read your rights in

      open court, that you’re being charged with a crime.” Id. L.W. never appeared in


      Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020       Page 4 of 21
      court in the criminal case filed against her and had a fellow attorney represent

      her pro bono; therefore, she claimed to never have been charged. She then

      claimed not to know whether she had been charged but admitted that she had

      been arrested and claimed that she was the victim of repeated acts of domestic

      violence by her ex-husband.


[8]   When confronted with a copy of the information charging her with domestic

      battery, L.W. claimed not to recognize it, but stated, “If something happened

      with it, yes. I didn’t ever -- I don’t even know if I even went to a court hearing.”

      Id. at 104. When asked if, based on the charging information, she had been

      charged with domestic battery L.W. finally stated, “I guess.” Id. at 105. She

      further admitted that a fellow attorney helped her in the criminal case, though

      she claimed not to know whether this attorney had entered an appearance on

      her behalf, claiming that he just “covered a hearing for me.” Id. at 106. When

      asked if the prosecutor eventually dismissed the charges, L.W. stated, “Yes. It

      took them forever to do it when I was the real victim[.]” Id.


[9]   After detailing her physically and emotionally abusive relationship with her ex-

      husband, L.W. testified that she was embarrassed by the charges and was

      worried about her reputation in the local legal community. When asked yet

      again regarding the truthfulness of her answer to Question 15, L.W. continued

      to be evasive, as evidenced by the following exchange:


              Q.     In 2012, and I’m not getting into the merits of whether you
                     should have been charged or not, you were charged with a
                     criminal offense?


      Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020         Page 5 of 21
               [L.W.’s counsel]:            Same --

        A.     I was never in the courtroom where they charged me.

               [L.W.’s counsel]:            Same objection.

        A.     I just know [L.W.’s attorney friend] said he’d take care of it.

        Q.     So you were arrested for an offense; correct?

        A.     Yes.

        Q.     And you had to go to the jail; correct?

        A.     Yes.

                                                 ***

        Q.     And that case was given a cause number?

        A.     Yes.

        Q.     And it went in front of a judge?

        A.     Yes. I guess. I mean, I was never there.

                                                  ***


        Q.     Now, back to number 15, is the reason you put “N/A”, as
               your attorney has been suggesting, is the technicality of
               whether a charge is a charge before the initial hearing?

        A.     I just didn’t think it applied.

        Q.     So --

        A.     I’ve answered ever jury questionnaire the same way.

        Q.     So when you say it didn’t apply, is it because of the
               technicality of what a charge is?

        A.     I just didn’t think I had.

        Q.     Why do you think it didn’t apply, is kind of where I’m -- this
               is your --
Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020         Page 6 of 21
               A.     Because nothing came of it. It was dismissed immediately.
                      Even the judge wanted it dismissed immediately, along with
                      the no contact order lifted.

               Q.     It was dismissed on August 1st, 2012, so it was dismissed
                      approximately three, four months. Does that sound about
                      right?

               A.     It took a while.

                                                        ***

               Q.     So to be clear, because I want to know what’s in your head,
                      okay, the reason you think it’s not applicable is because
                      nothing came of the charge and it was dismissed. Is that
                      fair?


               A.     Right.


       Id. at 117–19.


[10]   With regard to Question Number 16 on the jury questionnaire, which asked if

       she, any immediate family members, or a close friend had been a witness or

       victim in a criminal matter, L.W. also wrote “N/A,” despite stating that she

       had been the victim of repeated domestic abuse by her ex-husband. When

       confronted with this inconsistency, L.W. was again evasive, stating that she

       was not a victim in a criminal matter because she never reported the abuse to

       the police. She did admit that she was the victim of a crime, however. She also

       admitted that she had long wanted to be a juror but did not think she would get

       selected because she was a lawyer.


[11]   Loehrlein’s trial counsel was also deposed, and he testified that he and Kathryn

       Larimer (“Larimer”), a jury consultant, reviewed all the potential juror’s

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020         Page 7 of 21
       questionnaires. Both understood L.W.’s response to Question 15 as meaning

       that she had never been charged or convicted of a crime. Loehrlein’s trial

       counsel testified that, had he known that L.W. had been criminally charged, he

       would have investigated the matter further. Larimer testified that she already

       had concerns about L.W. serving on the jury because L.W. was an attorney,

       and, in Larimer’s experience, attorneys who serve on juries tend to have a lot of

       influence over the other non-lawyer jurors. Both trial counsel and Larimer,

       however, agreed to keep L.W. on the jury panel because L.W. had experience

       with a mentally ill relative and therefore might be more amenable to the

       insanity defense. Larimer explained that, had she known the full extent of

       L.W.’s prior experience with domestic violence, she would have recommended

       striking her from the jury for two reasons: first, she was concerned that L.W.

       might be favorable to the prosecution because it had dismissed the charge

       against L.W.; second, she was concerned that L.W.’s history as a victim of

       domestic violence would cause her to sympathize with Loehrlein’s wife and

       daughters.


[12]   The trial court denied Loehrlein’s post-verdict motion for a new trial. On

       March 4, 2019, the trial court sentenced Loehrlein to an aggregate term of 150

       years of incarceration, and Loehrlein now appeals.


                                                I. Juror Misconduct

[13]   Loehrlein first argues that the trial court erred by denying his motion for a new

       trial based on juror misconduct, referring to the false answers L.W. gave on the

       jury questionnaire. Loehrlein claims that, had he known of the charge against
       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020     Page 8 of 21
       L.W. and her prior experiences of being a victim of domestic violence, he

       would have moved to have her dismissed from the jury.


[14]   The United States Supreme Court has articulated a particularized test for

       determining whether a new trial is required due to juror deceit during voir dire

       or on jury questionnaires. State v. Dye, 784 N.E.2d 469, 472 (Ind. 2003) (citing

       McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)).1 To obtain a

       new trial, the defendant must first demonstrate that a juror “failed to answer

       honestly a material question.” Dye, 784 N.E.2d at 472 (quoting McDonough, 464

       U.S. at 556). The defendant must then further show that a correct response

       “‘would have provided a valid basis for a challenge for cause.’” Id. This two-

       part test applies equally to both deliberate concealment and innocent non-

       disclosure or honest mistakes. Id. at 473.


[15]   Proof that a juror was biased against the defendant2 or lied during voir dire

       generally entitles the defendant to a new trial. Id. (citing Warner v. State, 773

       N.E.2d 239, 246 (Ind. 2002)). “A defendant seeking a new trial because of juror

       misconduct must show gross misconduct that probably harmed the defendant.”




       1
         Even though McDonough was a civil action, the two-part test pronounced in that case has been applied in
       criminal matters. Alvies v. State, 795 N.E.2d 493, 498 (Ind. Ct. App. 2003) (citing Dye, 784 N.E.2d at 472),
       trans. denied.
       2
         “A juror’s bias may be actual or implied.” Alvies, 795 N.E.2d at 499 (citing Joyner v. State, 736 N.E.2d 232,
       238 (Ind. 2000)). Implied bias is attributed to a juror upon a finding of a certain relationship between the
       juror and a person connected to the case, regardless of actual partiality. Id. Where an inference of implied
       bias arises, a trial court should analyze such potential bias by considering the nature of the connection and
       any indications of partiality. Id. The court must weigh the nature and extent of the relationship versus the
       ability of the juror to remain impartial. Id.

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                                Page 9 of 21
       Id. We review the trial court’s determination of these issues for an abuse of

       discretion.


[16]   In the present case, the parties first dispute whether Juror L.W. committed

       gross misconduct. Loehrlein claims that the evidence clearly shows that L.W.

       was dishonest in her response to the jury questionnaire. The State contends that

       L.W.’s response to Question 15 on the questionnaire was not dishonest. We

       agree with Loehrlein.


[17]   Question 15 was clear in asking whether potential jurors, or members of their

       immediate family or close friends had ever “been charged with or convicted of a

       crime.” Appellant’s Confidential App. Vol. 3, p. 31. This is not a question that

       calls for an elusive, cryptic answer. It calls for a simple, yes-or-no response. By

       writing “N/A,” L.W. clearly indicated that she had never been charged with a

       crime. But this was plainly and patently false. L.W. later admitted that an

       information had been filed charging her with domestic battery. No matter how

       much word-smithing L.W. attempted at her deposition, she was, rightly or

       wrongly, charged with a crime. We find L.W.’s response that she did not

       believe she had been charged with a crime because she was never “read her

       rights” in open court to be incredulous. As a licensed attorney who had

       practiced some criminal law, L.W. knew, or at the very least should have

       known, that she had been charged with a misdemeanor. Indeed, she admitted

       that the charge had been dismissed. Had she not been charged, there would

       have been nothing to dismiss. L.W.’s lack of candor on the jury questionnaire is

       particularly troubling in light of the fact that she is a licensed attorney. She

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020       Page 10 of 21
       should therefore have been well aware not only of the fact that she was charged

       with a crime, but also of her ethical responsibility to be as forthcoming as

       possible in response to the jury questionnaire.


[18]   The State attempts to fault Loehrlein’s counsel for not further inquiring into

       L.W.’s response to this question during voir dire. But L.W.’s answer that the

       question was “not applicable” implied that she had not been charged with a

       crime. And had she been asked this question during voir dire, we doubt her

       answer would have been any more forthcoming that her responses during her

       deposition, in which, despite being confronted with clear evidence that she had

       been criminally charged, L.W. was obdurate and continued to paradoxically

       argue that she had not been charged because the charge was dismissed.


[19]   L.W.’s deceptive response to Question 15 is exacerbated by her response to

       Question 16, which asked if she had ever been the victim in a “criminal

       matter.” Id. L.W. again answered this question with “N/A,” despite her own

       deposition testimony that she had been the victim of dozens of incidents of

       domestic violence. L.W. justified this response by stating that she never

       reported the domestic violence to the police. While L.W.’s response to

       Question 16 may be more accurate than her answer to Question 15, as a lawyer,

       she should have been aware that the gist of the question was to let counsel for

       both sides know whether a juror had been the victim of a crime. A jury

       questionnaire is not the appropriate place to give elusive, half-true answers.

       And in light of L.W.’s admission that she had always wanted to be a juror but

       was concerned that she would not be selected because she is a lawyer, her

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020     Page 11 of 21
       responses to the jury questionnaire are even more troubling. To put it shortly,

       we have no hesitation in concluding that L.W.’s incorrect, untruthful response

       to Question 15 amounted to gross misconduct.


[20]   We find support for our conclusion in Dye, supra. In that case, the jury

       questionnaire asked if the potential jurors or their family ever been a witness to,

       a victim of, or charged with a crime. Juror Jackie Gunn (“Gunn”) answered

       each of these questions negatively. However, in her testimony before the post-

       conviction court, Gunn admitted that her brother had been convicted of two

       homicides in California and sentenced to death. 784 N.E.2d at 472. Gunn failed

       to mention this in her questionnaire because she “didn’t think it was anybody’s

       business.” Id. Two of Gunn’s other siblings had been arrested, and she had been

       convicted for driving while intoxicated, but she also failed to mention this in the

       jury questionnaire. Further, she had been raped by an uncle when a small child,

       but again failed to disclose this. The post-conviction court found this to be gross

       misconduct, a decision upheld by our supreme court on appeal. See id. at 474

       (noting that, even though Gunn admitted during voir dire that her brother was

       in prison “this does not excuse the fact that her brother’s prior convictions and

       death sentence were intentionally obscured by her deliberate dishonesty in

       responding to the questionnaire regarding family criminal charges.”).


[21]   Here, although L.W.’s conduct does not reach the depths of Gunn’s dishonesty,

       she would have been aware that she had been charged with a crime, even

       though that charge was later dismissed, and that her answer of “N/A” was at

       best incomplete and misleading, and at worst intentionally dishonest. L.W.’s

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020       Page 12 of 21
       answers to the juror questionnaire and her dissembling during her post-trial

       deposition are especially egregious because she was and is an attorney licensed

       to practice in this state, with almost twenty years of experience at the time of

       trial. To the extent that the trial court concluded that L.W.’s behavior did not

       amount to gross juror misconduct,3 its decision was clearly against the logic and

       effect of the facts and circumstances before the court.


[22]   The question then becomes whether L.W.’s gross misconduct “probably

       harmed the defendant.” Id. at 473 (citing Warner, 773 N.E.2d at 246). Loehrlein

       argues that L.W.’s failure to answer the jury questionnaire accurately deprived

       him of the opportunity to further delve into L.W.’s status as someone who was

       both charged with a crime and claimed to be the victim of a crime. Indeed,

       Loehrlein’s jury consultant testified that, if she had known about L.W.’s prior

       history with domestic violence, she would have recommended striking L.W.

       from the jury because she might be inclined to favor the prosecutor for

       dismissing the charges against her and because her status as a victim of

       domestic violence might cause her to sympathize with the victims in this case,

       i.e., Loehrlein’s wife and daughters.


[23]   Again, this is similar to Dye, in which the defendant’s trial counsel testified that,

       had he known about juror Gunn’s family history, he would have questioned her



       3
         The trial court did not issue findings of fact or conclusions of law but merely denied Loehrlein’s motion for
       a new trial. We are therefore unable to determine the reasoning behind the trial court’s decision. The record
       clearly shows, however, that L.W. was admitted to the practice of law in this state in 1999 and therefore had
       been practicing law for nineteen years at the time of her deposition. Her lack of candor on the juror
       questionnaire and during the deposition is therefore particularly troubling.

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                              Page 13 of 21
       further regarding her ability to be a fair and impartial juror and “almost

       certainly stricken her peremptorily if not for cause.” Id. at 474–75. The post-

       conviction court in Dye found that Gunn’s misconduct deprived both parties of

       the opportunity to determine in voir dire whether Gunn’s experiences would

       have impacted upon her verdict or recommendation. Id. at 475. The post-

       conviction court further concluded that Gunn’s strong views in favor of the

       death penalty, combined with her own status as a victim of sexual abuse

       probably harmed the defendant by denying him a fair trial. Id. at 476. Our

       supreme court affirmed both of these determinations. Id.


[24]   Here, the trial court denied Loehrlein’s motion for a new trial, thereby

       implicitly determining that L.W.’s conduct did not probably harm Loehrlein.

       Given the facts and circumstances before the court, we are of the opinion that

       this constituted an abuse of discretion. As in Dye, L.W.’s untruthful answers on

       the jury questionnaire deprived Loehrlein of the ability to delve into her prior

       experience with domestic violence. This is particularly concerning here, where

       Loehrlein savagely attacked members of his own family.


[25]   Nor is this a case like Warner, supra, where a juror indicated in a jury

       questionnaire that none of her close family members had been a victim of a

       serious crime, when, in fact, her half-sister had been murdered. 773 N.E.2d at

       246. The trial court concluded that the juror did not deliberately withhold this

       information. Id. Here, however, the facts and circumstances before the trial

       court clearly show that L.W. deliberately withheld the information regarding

       her prior history in an attempt to be seated as a juror. Moreover, in Warner, the

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020       Page 14 of 21
       evidence against the defendant was overwhelming. Here, although it was

       undisputed that Loehrlein committed the acts, there was conflicting evidence

       regarding whether he could appreciate the wrongfulness of his conduct at the

       time.


[26]   Accordingly, we conclude that the trial court abused its discretion by denying

       Loehrlein’s motion for a new trial. L.W.’s misleading answers to the jury

       questionnaire constituted gross misconduct, and this misconduct probably

       harmed Loehrlein by denying him the opportunity to strike L.W. from the jury.

       We therefore reverse Loehrlein’s convictions and remand for a new trial.


                                                II. Jury Instruction

[27]   Loehrlein also claims that the trial court abused its discretion by rejecting his

       jury instruction regarding the insanity defense. Although we have already

       concluded that we must reverse Loehrlein’s convictions and remand for retrial,

       this issue is likely to recur. We therefore address it on the merits as guidance for

       the parties and the trial court.


[28]   Our standard of review upon claims of instructional error is well settled:


               The purpose of jury instructions is to inform the jury of the law
               applicable to the facts without misleading the jury and to enable
               it to comprehend the case clearly and arrive at a just, fair, and
               correct verdict. In reviewing a trial court’s decision to give a
               tendered jury instruction, we consider (1) whether the instruction
               correctly states the law, (2) is supported by the evidence in the
               record, and (3) is not covered in substance by other instructions.
               The trial court has discretion in instructing the jury, and we will
               reverse only when the instructions amount to an abuse of
       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020      Page 15 of 21
                  discretion. To constitute an abuse of discretion, the instructions
                  given must be erroneous, and the instructions taken as a whole
                  must misstate the law or otherwise mislead the jury. We will
                  consider jury instructions as a whole and in reference to each
                  other, not in isolation.


       O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012) (quoting Munford v.

       State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010)).


[29]   The trial court instructed the jury with regard to the insanity defense as follows:


                  The defense of insanity is defined by law as follows:

                  A person is not responsible for having engaged in prohibited
                  conduct if, as a result of mental disease or defect, he was unable
                  to appreciate the wrongfulness of the conduct at the time of the
                  offense.

                  “Mental disease or defect” means a severely abnormal mental
                  condition that grossly and demonstrably impairs a person’s
                  perception, but the term does not include an abnormality
                  manifested only by repeated unlawful conduct or anti-social
                  conduct.


       Appellant’s App. Vol. 2, pp. 217. This tracks the language of the insanity

       defense statute. See Ind. Code § 35-41-3-6.4




       4
           This section provides:

                  (a) A person is not responsible for having engaged in prohibited conduct if, as a result of
                  mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the
                  time of the offense.



       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                              Page 16 of 21
[30]   Loehrlein tendered an instruction that provided: “‘Wrongfulness’ means

       contrary to public morality, as well as contrary to law.” Appellant’s App. Vol.

       2, p. 202. He also submitted an alternative instruction that provided:

       “Wrongfulness means legally or morally wrong.” Id. at 203. The trial court

       rejected this instruction but did permit defense counsel to argue to the jury that

       wrongfulness also included moral wrongfulness. Loehrlein now argues that the

       trial court erred by not giving these instructions to the jury.


[31]   Our supreme court considered and rejected a similar argument in Van Orden v.

       State, 469 N.E.2d 1153 (Ind. 1984). In that case, the defendant tendered an

       instruction stating that “within the legal definition of insanity is included the

       factual situation where the defendant appreciated the fact that her conduct was

       criminal but because of a delusion believed it to be morally justified.” Id. at

       1161. The trial court in that case instead instructed the jury using language from

       the then-current version of insanity defense statute.5 The Van Orden court

       concluded that the trial court’s instructions “fully explained the concept and



                  (b) As used in this section, “mental disease or defect” means a severely abnormal mental
                  condition that grossly and demonstrably impairs a person's perception, but the term does
                  not include an abnormality manifested only by repeated unlawful or antisocial conduct.
       I.C. § 35-41-3-6.
       5
           At that time, the insanity defense statute provided:

                  (a) A person is not responsible for having engaged in prohibited conduct if, as a result of
                  mental disease or defect, he lacked substantial capacity either to appreciate the
                  wrongfulness of the conduct or to conform his conduct to the requirements of law.
                  (b) “Mental disease or defect” does not include an abnormality manifested only by
                  repeated unlawful or antisocial conduct.
       I.C. § 35-41-3-6 (1977) (emphasis added). The italicized language was removed in 1984. See Barcroft v. State,
       111 N.E.3d 997, 1004 n.7 (Ind. 2018).

       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                                 Page 17 of 21
       legal defense of insanity,” and held that the trial court therefore did not err in

       refusing the defendant’s tendered instruction. Id.


[32]   The same is true here. The trial court properly instructed the jury regarding the

       insanity defense in Indiana, using language drawn from the applicable statute.

       It also permitted Loehrlein to argue to the jury that “wrongfulness” included

       moral as well as legal wrongfulness. Following Van Orden, we conclude that the

       trial court did not err by refusing Loehrlein’s tendered instruction.


                                                   Conclusion
[33]   Juror L.W.’s untruthful and misleading responses on the jury questionnaire

       constituted gross misconduct that harmed Loehrlein by depriving him of the

       opportunity to further investigate L.W.’s history and remove her from the jury

       due to her prior history as a victim of domestic violence and as someone who

       had criminal charges against her dismissed. We therefore reverse Loehrlein’s

       convictions and remand for retrial.


[34]   Reversed and remanded for proceedings consistent with this opinion.


       Kirsch, J., concurs.


       Bailey, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020      Page 18 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Clinton Loehrlein,                                         Court of Appeals Case No.
                                                                  19A-CR-737
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Bailey, Judge, dissenting.


[35]   An issue of juror misconduct is a matter that is within the trial court’s

       discretion. Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). Because I am not

       persuaded that Loehrlein has shown the trial court abused its discretion by

       denying Loehrlein’s motion to set aside the verdict, I respectfully dissent.


[36]   As the majority aptly observes, “[a] defendant seeking a new trial because of

       juror misconduct must show gross misconduct that probably harmed the

       defendant.” Warner v. State, 773 N.E.2d 239, 246 (Ind. 2002). In Warner, our

       Indiana Supreme Court affirmed a murder conviction although a juror had

       responded on a questionnaire that none of her close family members had been

       victimized by a serious crime, while in fact her half-sister had been murdered a

       year or two earlier. See id. The Court discerned no harm to the defendant:




       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020                   Page 19 of 21
               After considering the defense’s argument and reviewing the
               juror’s responses, the [trial] court concluded that the juror did not
               deliberately withhold this information, that she was not biased
               against Warner, and that Warner received a fair trial.


               We are not persuaded that the trial court abused its discretion.
               Although it was wrong for the juror to omit this information
               from her questionnaire, we cannot conclude that the omission
               rose to the level of gross misconduct. She testified under oath
               that this prior incident did not affect her impartiality. Moreover,
               given the amount of evidence presented by the State, Warner was
               not harmed. Rokop’s daughter described a lone assailant
               substantially similar to Warner’s appearance; Warner’s knife was
               embedded in Rokop’s neck; he admitted being at the scene of the
               crime; and police found Warner’s clothes covered with Rokop’s
               blood hidden in his trash. We see very little likelihood that the
               juror’s omitted response in any way affected the verdict.


       Id. at 246-47.


[37]   I believe that the instant circumstances are akin to those in Warner; that is, clear

       evidence that the defendant committed the charged conduct, and the juror’s

       testimony of impartiality. Indeed, Loehrlein admitted that he had killed his

       wife and attempted to kill his daughters. When J.W. was deposed, she

       adamantly insisted that: (1) she had not been formally arraigned on a charge

       against her, but if a charge had been filed, it was baseless and dismissed without

       her ever having appeared in court; (2) she did not consider herself a crime

       victim despite a history of domestic violence because she had chosen not to

       report any incident; and (3) her participation as a juror was not affected.




       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020       Page 20 of 21
[38]   J.W., a practicing attorney, stated at her deposition that the contested issue for

       the jury was whether Loehrlein had established his insanity defense. J.W.

       denied that her domestic violence history affected the insanity determination.

       Indeed, two appointed mental health experts testified that Loehrlein was sane

       and his own expert witness described Loehrlein’s thought processes but stopped

       short of opining that he was insane. Because Loehrlein admitted to the attacks

       and the jury heard from unified experts, there is no discernible harm from his

       loss of the opportunity to strike J.W. as a juror. Therefore, I vote to affirm his

       convictions.




       Court of Appeals of Indiana | Opinion 19A-CR-737 | February 21, 2020     Page 21 of 21
