MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   May 18 2017, 10:00 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                    Curtis T. Hill, Jr.
Vanderpool Law Firm, P.C.                               Attorney General of Indiana
Warsaw, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Claudio,                                      May 18, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        85A02-1611-CR-2709
        v.                                              Appeal from the Wabash Circuit
                                                        Court
State of Indiana,                                       The Honorable Robert R.
Appellee-Plaintiff                                      McCallen, III, Judge
                                                        Trial Court Cause No.
                                                        85C01-1509-F5-863



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017               Page 1 of 8
                                             Case Summary
[1]   Robert E. Claudio appeals his conviction for level 5 felony dealing in a narcotic

      drug (heroin). He asserts that the trial court erred in failing to question and/or

      remove a certain juror (“Juror 10”). He also challenges the sufficiency of the

      evidence to support his conviction. Finding that he has failed to preserve his

      challenge to Juror 10 and concluding that the evidence is sufficient to support

      his conviction, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the jury’s verdict are as follows. In July 2015,

      Sheena Stafford was stopped for a traffic infraction in Wabash and found to be

      driving on a suspended license. An officer from the Wabash Drug Task Force

      (“DTF”) was in the area and came to the site of the stop. Stafford had worked

      as a confidential informant in a neighboring county, and she suggested that she

      might work for the Wabash DTF.


[3]   A few weeks later, Stafford contacted Claudio and asked whether he had heroin

      to sell. Claudio answered affirmatively, and Stafford and DTF officers

      arranged a controlled buy. DTF officers searched Stafford by patting her down,

      checking all her pockets, and having her shake out her bra. They found her to

      have no drugs or money on her person or in her clothing. The officers fitted her

      with audio and video recording devices, gave her the money for the buy, and

      drove her to an area close to the prearranged location for the buy. Two of the

      officers watched her up to the corner, and another officer watched her the


      Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 2 of 8
      remainder of the way to the house. She knocked on the door and was greeted

      by a female, who led her to a room where Claudio was present with a small

      child. Claudio led her into the bathroom and shut the door. Stafford told

      Claudio that she had only forty dollars, and Claudio placed a foil package on

      the bathroom counter. The package contained 0.10 grams of a powdered

      substance that subsequently tested positive as heroin. Stafford took the package

      and left the house. DTF officers listened to Stafford via the audio device at all

      times preceding, during, and following the consummation of the sale.


[4]   After Stafford left the house, DTF officers watched her walk toward the

      rendezvous spot. Claudio followed her, told her that he was on his way to

      purchase more heroin, and suggested that she contact him later. When he left,

      Stafford entered a DTF vehicle and gave one of the officers the foil package

      containing the heroin. The officer drove her to the pre-buy location, removed

      her recording equipment, and conducted a post-buy search of Stafford’s person

      and clothing, finding that she possessed no money or contraband.


[5]   The State charged Claudio with level 5 felony dealing in a narcotic drug and

      later added a habitual offender count. On the second day of Claudio’s jury

      trial, a DTF officer informed the prosecutor that one of the jurors, Juror 10, had

      participated with her boyfriend (a confidential informant) in a controlled buy

      with the same DTF officers on one occasion within the previous two years.

      The prosecutor notified the trial court, and the court called a recess to allow

      Claudio and his counsel to discuss whether to object, question Juror 10, and/or

      ask for her removal. After the recess, defense counsel informed the court that

      Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 3 of 8
      Claudio would not ask to have Juror 10 removed and stated that the defense

      was comfortable with her continued service on the jury. The jury convicted

      Claudio of level 5 felony dealing, and he waived jury trial on the habitual

      offender count. The trial court adjudicated him a habitual offender and

      sentenced him to an aggregate ten-year term.


[6]   Claudio now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

      Section 1 – Claudio invited any error in the trial court’s failure
                   to question and/or remove Juror 10.
[7]   Claudio claims that the trial court erred in failing to question and/or remove

      Juror 10 after being informed that she had participated in a controlled buy with

      the same DTF officers on one previous occasion. “The right to a jury trial

      includes ‘a fair trial by a panel of impartial, indifferent jurors.” Stephenson v.

      State, 864 N.E.2d 1022, 1054 (Ind. 2007) (quoting Turner v. Louisiana, 379 U.S.

      466, 471 (1965)). Here, the jury was selected and sworn on the first day of trial.

      At the beginning of day two, a DTF officer informed the prosecutor that Juror

      10 had participated in a controlled buy with DTF on a previous occasion. Juror

      10’s boyfriend was the confidential informant in that case, but she was present

      during the controlled buy and was subjected to the pre- and post-buy searches.

      Tr. Vol. 2 at 120-22. The prosecutor informed the trial court, which in turn

      called a recess to allow Claudio and defense counsel to confer privately to

      determine whether to object, question Juror 10, and/or request her removal.


      Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 4 of 8
      When the court reconvened, defense counsel stated, “Judge, we are not asking

      to have [Juror 10] removed as a juror. We’re comfortable going forward with

      her serving in that capacity.” Id. at 123. Because Claudio assented to Juror 10

      remaining on the jury, he invited the error about which he now complains and

      is precluded from relief on appeal. See C.H. v. State, 15 N.E.3d 1086, 1097 (Ind.

      Ct. App. 2014) (“invited error is not reversible error”), trans. denied (2015).


[8]   Though he argues in terms of prejudice and grave peril, Claudio never raised

      the issue of fundamental error in his initial (and only) appellate brief. 1 He

      therefore has waived consideration of his juror bias claim as fundamental error.

      See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (finding waiver of

      fundamental error claim for failure to raise in initial appellate brief).


[9]   Notwithstanding, we address Claudio’s assertion that the trial court was

      required to sua sponte question and/or remove Juror 10 pursuant to Lindsey v.

      State, 260 Ind. 351, 358-59, 295 N.E.2d 819, 824 (1973). We disagree and find

      Lindsey distinguishable. There, our supreme court enunciated a process 2 for

      cases involving possible exposure by jurors to substantially prejudicial publicity

      which, in that case, was a newspaper publication. Id. Here, Claudio highlights


      1
        “The fundamental error exception is extremely narrow and applies only when the error constitutes a
      blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error
      denies the defendant fundamental due process.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (citation
      omitted).
      2
        In Lindsey, our supreme court outlined a process for the trial court to follow in cases involving a suggestion
      of improper and prejudicial publicity to which jurors may have been exposed: (1) interrogate the jury
      collectively to determine which, if any, of the jurors has been exposed to it; (2) interrogate and admonish
      individually and privately any jurors so exposed; (3) collectively admonish the jury; and (4) declare a mistrial
      sua sponte (if no party has so moved). 260 Ind. at 358-59, 295 N.E.2d at 824.

      Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017                  Page 5 of 8
       one experience of a single juror. Instead of objecting and asking for Juror 10 to

       be interrogated and/or removed, an opportunity specifically afforded him

       below, he now seeks to be rescued by Lindsey, which simply does not apply.

       We find no reversible error here.


          Section 2 – The evidence is sufficient to support Claudio’s
                                 conviction.
[10]   Claudio maintains that the evidence is insufficient to support his conviction for

       level 5 felony dealing in heroin. When reviewing a challenge to the sufficiency

       of evidence, we neither reweigh evidence nor judge witness credibility. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence

       and reasonable inferences most favorable to the verdict and will affirm the

       conviction “unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that

       the evidence “overcome every reasonable hypothesis of innocence.” Id.

       (citation omitted).


[11]   Claudio asks that we impinge upon the jury’s function to judge Stafford’s

       credibility by applying the “incredible dubiosity” rule, which states,


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible dubiosity.
               Application of this rule is rare and the standard to be applied is
               whether the testimony is so incredibly dubious or inherently
               improbable that no reasonable person could believe it.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 6 of 8
       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations omitted)

       (emphases added).


[12]   Claudio’s reliance on the incredible dubiosity rule is misplaced. First, Stafford

       was not the “sole witness” for the State. Claudio attempts to finesse this

       requirement by arguing that Stafford was the State’s sole witness who could

       testify whether she purchased bath salts from Claudio and somehow switched

       them for heroin, as Claudio asserts. Stafford testified that she purchased

       heroin. DTF officers testified that they searched Stafford immediately before

       and after the controlled buy and observed her visually and/or through an audio

       device during all stages of the transaction. She gave the officers the heroin that

       she had purchased, and the laboratory test confirmed it as heroin. Thus,

       Stafford’s testimony was not “wholly uncorroborated.” Nor was it “inherently

       improbable.” Stafford testified unwaveringly that she purchased heroin, not

       bath salts, from Claudio. The fact that Claudio asserted that she purchased bath

       salts and switched them for heroin does not render her testimony internally

       contradictory. Rather, it simply means that the jury had to decide whose

       testimony to believe. The incredible dubiosity rule does not apply in this case.


[13]   Claudio’s remaining arguments (that Stafford is an addict and falsely informed

       on another individual in the past) amount to invitations to reassess Stafford’s

       credibility, which we may not and will not do. The evidence most favorable to

       the jury’s verdict is sufficient to support Claudio’s conviction for dealing in

       heroin. Accordingly, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 7 of 8
[14]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1611-CR-2709 | May 18, 2017   Page 8 of 8
