Pursuant
 Pursuant to   Ind.Appellate Rule
            to Ind.Appellate    Rule 65(D),
                                      65(D),
this Memorandum       Decision  shall
 this Memorandum Decision shall not   not  be
regarded   as precedent
 be regarded               or cited
                 as precedent     or before
                                       cited
any
 before any court except for theof
      court  except   for the   purpose                Dec 10 2014, 6:55 am
establishing  the defense of
 purpose of establishing    theres judicata,
                                 defense  of
collateral  estoppel,  or  the  law
 res judicata, collateral estoppel, orof the
                                          the
case.
 law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

DORI NEWMAN                                        GREGORY F. ZOELLER
Newman & Newman, P.C.                              Attorney General of Indiana
Noblesville, Indiana
                                                   IAN MCLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

THOMAS DERROW,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 29A02-1405-CR-312
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Gail Z. Bardach, Judge
                              Cause No. 29D06-1307-FD-5628



                                        December 10, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
          Thomas Derrow appeals his conviction for operating a vehicle with an alcohol

concentration equivalent (“ACE”) of .15 or more with a prior conviction within five

years, a class D felony. Derrow raises one issue, which we revise and restate as whether

the trial court committed fundamental error when it did not remove a juror after Derrow’s

counsel informed the court he had made a mistake in exercising one of Derrow’s

peremptory challenge selections, thereby depriving Derrow of an impartial jury. We

affirm.

                         FACTS AND PROCEDURAL HISTORY

          At approximately 6:00 p.m. on July 14, 2013, Fishers Police Officer Brendon

Buehre observed Derrow’s vehicle weaving within its lane, almost strike a curb when

turning, and then overcorrect. Officer Buehre activated the emergency lights and siren of

his patrol vehicle to initiate a traffic stop. Derrow pulled his vehicle into a Taco Bell

parking lot and proceeded to pull into the drive-through lane. Officer Buehre exited his

patrol vehicle, walked up to Derrow as he was attempting to order food, and instructed

him to pull through and park in the lot. After Derrow parked his vehicle, Officer Buehre

approached and smelled a strong odor of alcohol coming from him, noticed that he

exhibited very poor manual dexterity and fumbled around, and that his eyes were watery

and bloodshot. Officer Buehre instructed him to exit the vehicle and saw that Derrow

was wearing flip-flop sandals and swim trunks which were slightly damp.          Officer

Buehre conducted three standardized field sobriety tests, each of which Derrow failed.

After obtaining a search warrant to draw Derrow’s blood, Officer Buehre obtained a

sample of his blood, and, under alcohol analysis results, the toxicology report showed a


                                            2
concentration of “.35 (g%).” State’s Exhibit 3. Police discovered an empty 1.75-liter

vodka bottle in Derrow’s vehicle.

       In an amended charging information filed in December 2013, the State alleged the

following counts against Derrow: Count I, operating while intoxicated endangering a

person as a class A misdemeanor; Count II, operating a vehicle with an ACE of .15 or

more, a class A misdemeanor; Count III operating while intoxicated endangering a

person with a prior conviction within five years, a class D felony; and Count IV,

operating with an ACE of .15 or more with a prior conviction within five years as a class

D felony. The State also alleged that Derrow was an habitual substance offender.

       A jury trial was held on March 11, 2014. During voir dire, the court indicated that

six jurors would be selected. The court asked the prospective jurors, among other

questions, whether: any of them knew the deputy prosecutors, defense counsel, Derrow,

the judge, the other prospective jurors, or the prospective witnesses; they had any

personal knowledge or remembered hearing anything about the case; any of them felt

they tended to be biased for or against the State or a defendant in a criminal case; any felt

they were unable to keep an open mind; any had impairments making it difficult to serve

as jurors; any had previously served as a juror or a witness; any were currently a

defendant in a criminal case or on probation; any felt that testimony of a law enforcement

officer should be given extra weight or the opposite; any had a claim against the State or

Derrow; any had any reservations about the rule of law requiring them to presume

Derrow’s innocence throughout trial; and whether any of their close friends had been the

victim of a crime. The transcript indicates that Juror No. 14 and Juror No. 15 did not


                                             3
verbally respond to these questions. Some of the other prospective jurors responded

affirmatively to several of the court’s questions, and the court further questioned those

prospective jurors regarding their responses. When the prospective jurors were asked if

any of them, their immediate families, or their close personal friends ever served as a law

enforcement officer, Juror No. 15 stated that a family friend was a law enforcement

officer for the Cumberland Police. The court asked if Juror No. 15 talked to the officer

about his or her work and if the fact that Juror No. 15 had a friend who was a law

enforcement officer would affect the way Juror No. 15 considered the evidence, and Juror

No. 15 responded “No” to both questions. Transcript at 70.

       Following the court’s questions, the prosecutor and defense counsel then asked

additional questions of the prospective jurors. Defense counsel asked for a show of

hands of those prospective jurors who believed a person could be involuntarily

intoxicated, and then said “Okay. A lot of people. Looks like everybody.” Id. at 106.

Juror No. 1 indicated that “someone could put something in your food or drink” and that

the person “would feel the effects of whatever it was that was put in their drinks.” Id. at

106. Defense counsel asked “[d]o you think they could black out and do things they

otherwise wouldn’t do,” and Juror No. 1 replied “[i]f that’s one of the side effects of

whatever was put into their drink, yes.” Id. Defense counsel asked Juror No. 15 “what

do you think about that,” and Juror No. 15 replied “I agree,” and when defense counsel

asked “[d]o you think there’s any other way to become involuntary [sic] intoxicated,”

Juror No. 15 stated “[n]ot that I know of.” Id. at 106-107. Defense counsel asked the

prospective jurors if they had heard of prescription medications that could cause a person


                                            4
to sleepwalk, and several prospective jurors indicated they believed that some

medications for sleep aid could cause sleepwalking. Several prospective jurors indicated

they believed a person could possibly drive a car while involuntarily intoxicated. Juror

No. 14 indicated that “[b]lack out to me would be kind of temporary” and “I don’t

believe that it would be prolonged.” Id. at 119. Defense counsel asked Juror No. 14 if it

was unbelievable that a person had no memory of her evening or of eating yogurt, and

Juror No. 14 replied “I believe that she can have that memory – that she won’t remember,

but I don’t believe that she would have been awake the whole time,” that “[s]he may

awake that 10 or 15 minutes when she went downstairs and had the yogurt, then she

would probably go back to sleep,” and that “I don’t believe that she would black out the

entire evening.” Id. at 119-120. Defense counsel asked “[b]ut sleeping and walking and

still be moving around,” and Juror No. 14 said “[t]hat’s correct.” Id. at 120. Defense

counsel asked “[a]nd still not have a memory of doing it. Do you think that’s possible,”

and Juror No. 14 replied “[t]hat’s possible.” Id. After defense counsel questioned Juror

No. 12, who stated that a person should not be texting or chatting while on certain

medications “because you really don’t know what you’re doing,” Juror No. 14 stated: “I

do want to point out that I . . . have a seven year old son, and I do believe that he does

sleepwalk. So, I have found him to move at night where his light is on and just put him

back to bed and he’s fine with it.” Id. at 121-122. Juror No. 14 further stated: “I don’t

think it’s a serious case because he won’t remember the next morning but he’s usually

just in his room playing with his toys, got his light on, and I just tuck him back into the

bed and he’s fine.” Id. at 122. Another prospective juror stated that the juror’s daughter


                                            5
would dress for school at 1:30 a.m. and have no recollection the following morning.

Another prospective juror indicated that the juror used to sleepwalk as a child.

       Following questioning by the prosecutor and defense counsel, the trial court

stated: “You may bring me both sheets. All right. Don’t anybody leave until I get

through the whole list. The following jurors are excused: Juror Number 1, Juror Number

3, Juror Number 4, Juror Number 15, Juror Number 16, Juror Number 19, and Juror

Number 21.” Id. at 125. The court then asked counsel to approach and stated: “Okay.

(indiscernible-due to noise) stuck with the person, since you both have them left, either

one of you can exercise a peremptory against 25 as an alternate if you want to.” Id. at

125-126. Both the prosecutor and defense counsel replied “I do not,” and the bench

conference ended. Id. at 126. Derrow’s counsel then immediately asked to approach and

stated: “This may be too late, but I made a numerical mistake and Mr. Derrow just – I had

Number 15 and he had vice versa. He wanted 15 and he wanted to strike 14.” Id. at 126.

The court replied: “Fifteen’s gone.” Id. Derrow’s counsel stated: “Okay. I’ll explain to

him that it’s just an error we’ll have to deal with later.” Id.

       During opening statements, Derrow’s counsel stated that Derrow was going to

assert the defense of involuntary intoxication. Defense counsel stated that the jury would

hear that Derrow had an issue with insomnia, that his physician gave him a prescription

drug, and that he took the drug for the first time, went to sleep, and woke up bewildered

sitting in a jail cell. Derrow testified at trial that he took the dosage of medication he was

prescribed, that within fifteen or twenty minutes he became very drowsy and fell asleep,

and that the next thing he remembered was waking up in the jail. He indicated he did not


                                               6
remember driving, putting his swim trunks back on, having a large bottle of vodka that

was discovered in his vehicle, or drinking anything at the pool that morning before he

went back into his apartment.     During final arguments, defense counsel stated that

Derrow was in the car, that he obviously had a lot of alcohol in his system, that he could

not drive the car appropriately, and that is why the police officer stopped him. Defense

counsel argued that Derrow did not act with conscious intent and did not know what he

was doing. He argued that Derrow took his prescription medication, went to sleep in his

pajamas, and later woke up, drank the vodka, and drove his vehicle while involuntarily

intoxicated.

       Following the presentation of evidence, the jury returned verdicts of guilty of the

charges under Counts I and II, and Derrow entered a guilty plea with respect to the

charges under Counts III and IV and admitted to being an habitual substance offender.

The court ultimately merged the convictions under Counts I through IV into one

conviction under Count IV for operating a vehicle with an ACE of .15 or more with a

prior conviction within five years as a class D felony. The court sentenced Derrow to

three years, to be served in the Indiana Department of Correction for his conviction under

Count IV, enhanced by three years, executed as a direct commitment to the Hamilton

County Community Corrections work release program, for the habitual substance

offender enhancement.

                                     DISCUSSION

       The issue is whether the trial court committed fundamental error when it did not

remove Juror No. 14 from the jury after Derrow’s counsel informed the court he had


                                            7
mistakenly exercised one of Derrow’s peremptory challenges to strike Juror No. 15 or

whether Derrow was deprived of an impartial jury. Derrow concedes that he did not

request the trial court to remove Juror No. 14 from the jury. Nevertheless, he asserts that

the trial court committed fundamental error by not allowing his counsel to correct the

mistaken selection, or by failing to sua sponte correct the mistake, and that his

fundamental right to an impartial jury was violated. He argues that, after the court stated

“Fifteen’s gone,” his counsel did not request any relief and “acquiesced to the mistake

and left Derrow without a remedy.” Appellant’s Brief at 10. He argues that his counsel

could have made a motion to remove Juror No. 14 and that the trial judge could have

offered the same relief sua sponte. He also notes that the defense theory was one of

involuntary intoxication and blackout for a prolonged period of time and that Juror No.

14 told everyone during the jury selection process that she would not think that possible,

and he requests a new trial.

       The State maintains that parties are not constitutionally entitled to peremptory

challenges, that the transcript of voir dire shows that Derrow’s actual jurors were

qualified, fair-minded and earnest in their desire to follow the law and hold the State to

its burden of proof, and that Derrow had a fair trial. The State also argues that Juror No.

14 was not necessarily a better strategic choice for a peremptory challenge than Juror No.

15 because Juror No. 15 insisted that the only way someone might become involuntarily

intoxicated, blackout, and do things they would not ordinarily do was if a third party

slipped a drug into the person’s drink and that was not the situation claimed by Derrow’s

counsel.


                                            8
       In his reply brief, Derrow argues that his trial counsel explained that he wanted

Juror No. 15 and wanted to strike Juror No. 14, that his counsel stated he would tell his

client that it would be dealt with later, that it was not dealt with later, and that the court,

the State, and his counsel knew a mistake had been made and there was a juror seated that

Derrow did not want. He argues that “[i]t is pretty clear this issue was not a strategic

decision and it is clear that Derrow’s counsel made a mistake and that was what was

represented to the trial court.” Appellant’s Reply Brief at 1.

       “To qualify as a fundamental error, an error must be so prejudicial to the rights of

the defendant as to make a fair trial impossible.” Black v. State, 829 N.E.2d 607, 610

(Ind. Ct. App. 2005) (citing Merritt v. State, 822 N.E.2d 642, 643 (Ind. Ct. App. 2005)

(quoting Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002))), trans. denied.               The

fundamental error exception to the waiver rule is an extremely narrow one, “available

only when the record reveals clearly blatant violations of basic elementary principles of

due process, and the harm or potential for harm cannot be denied.” Id. In determining

whether fundamental error occurred with regard to voir dire, we observe that “[t]he

purpose of voir dire is to determine whether a prospective juror can render a fair and

impartial verdict in accordance with the law and the evidence.” Id. (citing Joyner v.

State, 736 N.E.2d 232, 237 (Ind. 2000)). A trial court has broad discretion in controlling

the voir dire of prospective jurors. Id.

       In Ross v. Oklahoma, the United States Supreme Court stated in part that it

“reject[ed] the notion that the loss of a peremptory challenge constitutes a violation of the

constitutional right to an impartial jury,” that it has “long recognized that peremptory


                                              9
challenges are not of constitutional dimension,” and that “[t]hey are a means to achieve

the end of an impartial jury.” 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988) (internal

citations omitted). In addition, “[a]ny claim that the jury was not impartial . . . must

focus not [on the challenged juror who was removed by the peremptory strike], but on the

jurors who actually sat.” Jackson v. Parke, 142 F.3d 439 (7th Cir. 1998) (citing Ross,

487 U.S. at 86) (brackets in original).

       The record reveals that the parties submitted their peremptory strike selections to

the trial court and that the court then excused the selected prospective jurors, including

Juror No. 15. The court thanked the seven excused prospective jurors for their service

and instructed the remaining jurors where to sit. After the court noted both parties had

not used all of their peremptory strikes and they could exercise a peremptory challenge

against the alternate juror and the parties declined to do so, Derrow’s counsel approached

the bench and stated he had made a mistake and that Derrow “wanted [Juror No.] 15 and

he wanted to strike [Juror No.] 14.” Transcript at 126. The court stated, “Fifteen’s

gone,” and Derrow counsel stated: “Okay. I’ll explain to him that it’s just an error we’ll

have to deal with later.” Id. According to the court, Derrow had peremptory challenges

remaining. The record shows and Derrow concedes that he did not attempt to exercise

any remaining peremptory challenge or otherwise request that Juror No. 14 be removed

from the jury.

       We further note that the responses of Juror No. 14 during voir dire as set forth

above do not demonstrate that the placement of Juror No. 14 on the jury resulted in a

biased jury. Juror No. 14 indicated upon questioning that it was possible that a person


                                           10
could temporarily blackout and walk and move around and have no memory of those

actions. Juror No. 14 also had a child who would sleepwalk and not remember his

actions the following morning.

       Based upon the record, we conclude that no violation of Derrow’s right to an

impartial jury occurred. Derrow has not demonstrated that the trial court’s failure to sua

sponte dismiss Juror No. 14 resulted in fundamental error or that he was deprived of an

impartial jury. Derrow is not entitled to a new trial.

                                      CONCLUSION

       For the foregoing reasons, we affirm Derrow’s conviction for operating a vehicle

with an ACE of .15 or more with a prior conviction within five years, a class D felony.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                             11
