Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                     Dec 10 2014, 6:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STACY R. ULIANA                                  GREGORY F. ZOELLER
Bargersville, Indiana                            Attorney General of Indiana

                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

PEDRO VICENTE,                                   )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 12A04-1403-CR-133
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE CLINTON CIRCUIT COURT
                          The Honorable Bradley K. Mohler, Judge
                              Cause No. 12C01-1203-FA-219


                                      December 10, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       Pedro Vicente appeals his conviction for Class A felony child molesting. We affirm.

                                            Issues

       The issues raised by Vicente are:

              I.     whether the trial court properly denied his motion to
                     strike two jurors for cause; and

              II.    whether the trial court properly instructed the jury
                     regarding the definition of an “object” for purposes of
                     child molesting by deviate sexual conduct.

                                            Facts

       We need not relate the graphic details of the crime. It suffices to say that Vicente

frequently cared for nine-year-old J.M., who has severe mental and physical disabilities.

One evening, shortly after J.M. had been left in Vicente’s exclusive care for a period of

time, J.M.’s mother found a large amount of blood in her diaper. After J.M. was taken to

the hospital, it was discovered that she had sustained severe trauma to her vagina. The

State charged Vicente in Clinton County with one count of Class A felony child molesting.

The information alleged that Vicente performed the molestation by either “sexual

intercourse or deviate sexual conduct . . . .” App. p. 16.

       During voir dire for Vicente’s jury trial, one prospective juror, A.H., was questioned

by defense counsel as follows:

              Q:      Okay. So are you suggesting then that—that you could
              not sit impartially in this type of trial just because of the nature
              of the charges?

              A:     Yes.


                                               2
              Q:      And you’re saying that for sure?

              A:      Yes.

Tr. p. 111. A second prospective juror, B.A., noted that he has a daughter with a

developmental disability and said, “I think he’s guilty already.” Id. at 103. B.A. also said

that he did not think he could be an impartial juror and that he would be “heavily” biased

in favor of the State. Id. at 113.

       After these responses from A.H. and B.A., Vicente challenged them for cause.

Before ruling on this motion, the trial court asked the jury pool en masse whether there was

anyone who believed they would be unable to follow the court’s instructions. A.H. and

B.A. did not raise their hands; one person did raise his hand and said he would be unable

to follow instructions, and he was dismissed for cause. After A.H. and B.A. failed to raise

their hands in response to the trial court’s question regarding inability to follow

instructions, the trial court denied Vicente’s motion to remove them for cause. Vicente

then used two of his ten peremptory challenges to remove A.H. and B.A. from the jury

panel and used the remaining eight peremptories on other prospective jurors. Due to

challenges by the State and Vicente and the relatively small size of the jury pool, the trial

court was only able to seat twelve regular jurors, and it could not seat an alternate. After

the jury was selected, defense counsel stated, “The jury is acceptable to the defense Judge.”

Id. at 145. Defense counsel did not say that he was forced to accept a juror he did not want

to accept because of having to use peremptory challenges to remove A.H. and B.A.

       During Vicente’s trial, the State presented evidence that J.M.’s vagina had sustained

severe trauma from penetration of some kind. However, the State was unable to present

                                             3
definitive proof as to whether her vagina had been penetrated by a penis or by some other

object, i.e. by deviate sexual conduct. An expert for the State testified that the injuries to

J.M.’s vagina could have been caused by either an adult male’s penis or an adult’s fingers.

The State tendered a proposed final instruction giving the then-statutory definition of

deviate sexual conduct “as meaning an act involving a sex organ of one person and the

mouth or anus of another person, or, the penetration of the sex organ or anus of a person

by an object.” App. p. 137. It also tendered a proposed instruction stating, “When deviate

sexual conduct is charged alleging the penetration of the sex organ or anus of a person by

an object, the law holds that a finger is an object.” Id. at 138. Vicente objected to this

instruction, but part of the objection was noted as “[i]ndiscernible” by the court reporter.

Tr. p. 469. The trial court overruled Vicente’s objection and gave the instruction.

       The jury found Vicente guilty as charged, and the trial court sentenced him

accordingly. He now appeals.

                                          Analysis

                                         I. Voir Dire

       Vicente first contests the trial court’s denial of his challenge for cause to prospective

jurors A.H. and B.A.       He contends they demonstrated clear bias against him and

unequivocally indicated that they could not be impartial jurors. He also argues that the

trial court’s attempt to rehabilitate A.H. and B.A. by asking the juror pool en masse whether

they could follow the court’s instructions—and A.H. and B.A.’s failure to respond to that

question—was ineffective. Additionally, Vicente notes that he utilized two peremptory



                                               4
challenges to remove A.H. and B.A. from the juror pool and used all ten of the peremptory

challenges he had been allotted.

        We conclude that we need not address the merits of whether the trial court

erroneously denied Vicente’s challenge for cause to A.H. and B.A. Under clear Indiana

precedent, in order to obtain reversal of a conviction based on a claim of error in a trial

court’s denial of a juror challenge for cause, two things must occur. First, a defendant must

exhaust all of his or her peremptory challenges if a challenge for cause is denied. Oswalt

v. State, No. 35S02-1401-CR-10, slip op. at 5 (Ind. Oct. 22, 2014).1 Second, a defendant

must show that an incompetent or objectionable juror served on the jury as a result of a

trial court’s erroneous rejection of a for-cause challenge. Id. “An ‘incompetent’ juror is

one who is removable for cause, while an ‘objectionable’ juror is one who is not removable

for cause but whom the party wishes to strike.” Whiting v. State, 969 N.E.2d 24, 30 n.7

(Ind. 2012).

        The State concedes that Vicente satisfied the exhaustion rule. It argues, however,

that Vicente failed to show that an incompetent or objectionable juror served on the jury.

We agree. In Oswalt, although the court relaxed the exhaustion rule, it did not relax the

rule requiring a party to demonstrate that an incompetent or objectionable juror served on

the jury. Rather, it restated the longstanding rule that “‘even where a defendant preserves

a claim by striking the challenged juror peremptorily, reversible error occurs only where



1
  In Oswalt, our supreme court clarified that a party may satisfy the exhaustion rule by using its final
peremptory challenge on either an objectionable or incompetent juror. In other words, so long as a party
uses all of its peremptory challenges, the party does not have to use the last peremptory challenge on a juror
the party believes should have been removed for cause.

                                                      5
the defendant exhausts all peremptories and is forced to accept either an incompetent or an

objectionable juror.’” Oswalt, slip op. at 7 (quoting Whiting, 969 N.E.2d at 30). Without

such a showing, a party has not established prejudice resulting from a trial court’s denial

of a for-cause challenge. Id. at 8.

       In Oswalt, the defendant’s trial counsel stated on the record that a juror was being

seated whom he found objectionable but was unable to strike peremptorily because he had

been forced to use a peremptory challenge on a juror he believed should have been removed

for cause. Id. Here, there is no such record. Vicente’s trial counsel never made any

statement indicating that he was being forced to agree to either an objectionable or

incompetent juror as a result of having to use peremptory challenges to remove A.H. and

B.A. To the contrary, trial counsel stated without qualification that the seated jury was

“acceptable to the defense . . . .” Tr. p. 145. Even if we were to assume the trial court erred

in refusing to remove A.H. and B.A. from the jury pool for cause, Vicente has failed to

establish that he was prejudiced by that ruling. There is no evidence in the record that trial

counsel for Vicente was required to seat a juror he did not want to seat as a result of having

been forced to use two peremptory challenges on persons who should have been removed

for cause.

       Vicente argues that we should create an exception in this case to the requirement

that a party show that an objectionable or incompetent juror served on a jury as a result of

a trial court’s denial of a for-cause challenge. He notes that, because of the limited jury

pool in a less-populous county and because the highly inflammatory nature of the charge

against him resulted in many prospective jurors being removed for various reasons, the

                                              6
trial court was left with the bare minimum number of persons to serve on a twelve-person

jury, with no person even to spare as an alternate. 2 Vicente contends, “when a court

requires the defendant to use his peremptory strikes curatively, the Indiana Jury Rules are

not being applied equally, fairly, or constitutionally.” Appellant’s Br. p. 11.

        We are not in a position to create an exception to a bright-line rule established by

our supreme court. To the contrary, we observe that in Whiting, the court refused to allow

criminal defendants to argue fundamental error in the event he or she failed to comply with

the exhaustion rule after a for-cause challenge has been denied. See Whiting, 969 N.E.2d

at 34. Additionally, the court noted various policy reasons for requiring compliance with

the exhaustion rule, including the interest in finality and the difficulty of an appellate court

second-guessing a trial court’s ruling on a for-cause challenge when a defendant fails to

take all available steps to exclude that juror. See id. at 30-31. The court also held that,

even if an erroneous denial of a for-cause challenge was “structural” error potentially

impacting the Sixth Amendment right to an impartial jury, such claims can be forfeited

through procedural default. See id. at 31-32 (citing Yakus v. United States, 321 U.S. 414,

64 S. Ct. 660 (1944), and Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273 (1988)). The

court saw no difference between civil and criminal trials in this regard. Id. at 33. In fact,

both the Oswalt and Whiting opinions relied in large part upon the court’s earlier decision

in Merritt v. Evansville-Vanderburgh School Corporation, 765 N.E.2d 1232 (Ind. 2002).




2
 Vicente makes no argument that the trial court was required to seat an alternate juror. See Ind. Jury Rule
16(a) (providing that in criminal cases, “The court shall determine the number of alternate jurors to be
seated.”).

                                                    7
The Whiting opinion further stated, “that a preserved error is reversible only if the

defendant shows that at least an objectionable juror served simply acknowledges that a

criminal defendant is entitled to a fair trial, not a perfect one.” Id. at 33 n.10.

       Although Whiting specifically addressed failure to comply with the exhaustion rule,

and not failure to show that an objectionable or incompetent juror served on a jury, we

believe that its emphasis upon the need to properly preserve a claim of erroneous denial of

a for-cause challenge applies here as well. Trial counsel failed to give any indication that

someone served on the jury whom he did not want to serve. To the contrary, counsel

expressly indicated to the trial court that the jury was “acceptable.” Tr. p. 145. A.H. and

B.A. were not on the jury. It is difficult, if not impossible, to assess on this record how

Vicente supposedly was prejudiced by the denial of his for-cause challenges. Given that,

we conclude it would be inappropriate to reverse Vicente’s conviction based on the mere

speculation that he might have been prejudiced. We do not opine on the merits of the denial

of Vicente’s for-cause challenges.

                                     II. Jury Instruction

       Vicente also contends the trial court erred in instructing the jury, “When deviate

sexual conduct is charged alleging the penetration of the sex organ or anus of a person by

an object, the law holds that a finger is an object.” Id. at 138. Vicente argues that this

instruction violates the rule set forth by our supreme court prohibiting jury instructions

“that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case

. . . .” Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003); Dill v. State, 741 N.E.2d 1230,

1232 (Ind. 2001). He also argues that, even if the language is a correct statement of the

                                               8
law derived from appellate opinions, it is not necessarily proper to utilize language in such

opinions as jury instructions. See Ludy, 784 N.E.2d at 462.

       The State first responds that Vicente failed to preserve his claim of error on this

point. A party wishing to preserve a claim of instructional error for appeal must identify

the specific grounds for objection at trial. Kane v. State, 976 N.E.2d 1228, 1231 (Ind.

2012). A specific and timely objection is required so that a trial court has the opportunity

to avoid reversible error, or a miscarriage of justice, or wasting time and resources. Id.;

see also Ind. Crim. Rule 8(B) (“No error with respect to the giving of instructions shall be

available as a cause for new trial or on appeal, except upon the specific objections made as

above required.”); Ind. Trial Rule 51(C); (“No party may claim as error the giving of an

instruction unless he objects thereto before the jury retires to consider its verdict, stating

distinctly the matter to which he objects and the grounds of his objection.”).

       At trial, when the State proposed the giving of this instruction, trial counsel stated,

“Just for the record, I’ll make an objection. I have not—because I have not had a chance

to review the case” the State had cited in support of the instruction. Tr. p. 468. Trial

counsel continued, “I’ve never seen that worded that way um, in jury instructions before.

I don’t believe it’s part of a Pattern. Um, and um, but I’ll leave that to the Court’s discretion

Your Honor.” Id. After the trial court briefly allowed trial counsel to review the case, trial

counsel made a comment noted as “[i]ndiscernible” in the transcript. Id. at 469. The trial

court then stated, “I believe it is yes. Okay. And so we’ll uh, over defense objection I will

give uh, State’s proposed final instruction number one.” Id.



                                               9
        Here, although some of what trial counsel said was not adequately recorded, there

is no indication that he made any specific objection on grounds related to the rule in Ludy

and Dill. There is no statement by the trial court indicating that it considered whether the

instruction violated the Ludy/Dill rule, as likely would have occurred had such a specific

objection been made. Cf. Kane, 976 N.E.2d at 1231-32 (holding defendant sufficiently

preserved claim of instructional error where record revealed trial court had considered

whether proposed instruction was a correct statement of the law). The only grounds for

objection possibly indicated in the transcript here was that the instruction was not a correct

statement of the law, but Vicente does not make that argument on appeal. We doubt that

this claim of instructional error was adequately preserved.

        But, because part of trial counsel’s statements to the trial court were inaudible, we

will give Vicente the benefit of the doubt and address his argument on the merits. When

reviewing a trial court’s decision to give or refuse to give a proposed instruction, we

consider: (1) whether the instruction correctly states the law; (2) whether there was

evidence presented at trial that would support giving the instruction; and (3) whether the

substance of the instruction was covered by other given instructions. Id. at 1230-31.

Generally, we review the way in which a trial court has instructed a jury for an abuse of

discretion. Id. at 1231.3




3
 Whether an instruction correctly states the law is a question of law that appellate courts review de novo.
Kane, 976 N.E.2d at 1231. The decisions in Ludy and Dill did not state the standard of review that was
used in finding the instructions in those cases to be erroneous. In this case, Vicente concedes that the
challenged instruction was a correct statement of the law and argues only that the trial court abused its
discretion.

                                                    10
       In Dill, our supreme court disapproved of an instruction telling the jury that it could

consider the flight of a person after the commission of a crime, though not proof of guilt,

as evidence of consciousness of guilt. Dill, 741 N.E.2d at 1231. The court first stated that

the instruction was ambiguous and confusing for informing the jury that flight could be

evidence of consciousness of guilt, but not proof of guilt itself. Id. at 1232. “The trial

court should refuse ambiguous and confusing instructions.” Id. Next, the court stated that

trial courts should not give discrete instructions that highlight or emphasize one particular

facet of the evidence. Id. Finally, the court stated that the instruction was misleading

because it emphasized the possible inculpatory inferences to be derived from a defendant’s

flight while omitting consideration of contrary, innocent reasons for fleeing. Id.

       In Ludy, the court rejected an instruction that stated, “A conviction may be based

solely on the uncorroborated testimony of the alleged victim if such testimony establishes

each element of any crime charged beyond a reasonable doubt.” Ludy, 784 N.E.2d at 460.

The court concluded that this instruction unduly emphasized and focused the jury’s

attention upon a single witness’s testimony. Id. at 461. It also found that this language

stated an appellate standard of review for sufficiency of the evidence that was inappropriate

to give to a jury. Id. “‘The mere fact that certain language or expression [is] used in the

opinions of this Court to reach its final conclusion does not make it proper language for

instructions to a jury.’” Id. at 462 (quoting Drollinger v. State, 274 Ind. 5, 25, 408 N.E.2d

1228, 1241 (1980)). The court also concluded that the word “uncorroborated” was a legal

term, and leaving it undefined would be potentially confusing, misleading, or of dubious

efficacy to a lay juror. Id.

                                             11
       We conclude that the giving of the challenged instruction here did not violate Dill

or Ludy. The instructions in those cases intruded upon the jury’s weighing all of the

evidence presented during trial by highlighting one evidentiary fact or witness over others.

Vicente argues that the instruction here unduly emphasized the State’s theory that he could

have penetrated J.M.’s vagina with his finger as opposed to his penis, but we disagree.

Rather, the instruction merely provided the jury with a settled legal definition of the word

“object” as found in the deviate sexual conduct statute at the time of trial. Trial courts have

discretion to give instructions that include definitions of words or phrases. Erickson v.

State, 439 N.E.2d 579, 580 (Ind. 1982). In fact, “[w]hen words of a technical or legal

meaning not normally understood by the jurors are used in an instruction, other instructions

defining the terms should be given by the trial court.” Id.; see also Epperly v. Johnson,

734 N.E.2d 1066, 1074 (Ind. Ct. App. 2000) (stating general rule that “phrases with

particularized legal meaning or which are ‘words of art’ require definition when used in

jury instructions.”).

       Vicente was alleged to have molested J.M. by either sexual intercourse or deviate

sexual conduct. See Ind. Code § 35-42-4-3(a) (2013). Deviate sexual conduct was defined

as “an act involving: (1) a sex organ of one person and the mouth or anus of another person;

or (2) the penetration of the sex organ or anus of a person by an object.” I.C. § 35-41-1-9

(2013). “Object” is not defined by statute. However, our supreme court has held that a

finger is an “object” under the law, because “it is unlikely that the legislature would

criminalize sexual assaults committed by means of sex organ, mouth, or inanimate object,

yet condone such assaults if committed by means of a finger or hand.” Stewart v. State,

                                              12
555 N.E.2d 121, 126 (Ind. 1990), overruled on other grounds by Lannan v. State, 600

N.E.2d 1334 (Ind. 1992). The Stewart opinion rejected the defendant’s argument that,

according to standard English definitions, the word “object” could only refer to inanimate

objects. The trial court’s instruction here was based upon Stewart and following cases.

       We conclude that the instruction, rather than being misleading or confusing or

ambiguous, simply clarified the legal definition of the word “object.” Additionally, a

finger is, legally speaking, an “object.” Following the decision in Stewart, there is no gray

area, although without Stewart’s definition some laypersons might be confused as to

whether a finger is an “object,” as reflected by the defendant’s argument in that case. A

defendant is not entitled to rely on a jury’s confusion regarding a word or ignorance of

settled legal definitions as a basis for acquittal. By contrast, flight may or may not be

evidence of consciousness of guilt, and uncorroborated testimony by a single witness may

or may not be sufficient evidence of guilt, at a jury’s discretion. The instructions in Dill

and Ludy had the potential to focus jury attention on such evidence to the exclusion of

other evidence that might point toward a not guilty verdict. Additionally, although Ludy

cautioned that language in appellate opinions should not necessarily be used in jury

instructions, there is no blanket prohibition against such use. Gravens v. State, 836 N.E.2d

490, 494 (Ind. Ct. App. 2005), trans. denied. In sum, we believe the trial court acted within

its discretion when it gave a jury instruction providing a settled legal definition for the word

“object.”




                                              13
                                          Conclusion

       Vicente has not shown that he was prejudiced by the trial court’s denial of his for-

cause juror challenges, and the trial court did not abuse its discretion in instructing the jury.

We affirm.

       Affirmed.

BRADFORD, J., and BROWN, J., concur.




                                               14
