MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jul 27 2017, 8:22 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Earl L. Taylor,                                          July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1607-CR-1684
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1407-MR-1742



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017         Page 1 of 12
[1]   Earl L. Taylor (Taylor) appeals following his conviction for first degree murder.

      He raises the following issues on appeal:


              1. Did the State present sufficient evidence to support Taylor’s
              conviction?


              2. Did the trial court abuse its discretion in denying Taylor’s
              motion to correct error based on alleged juror misconduct?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Earl and Kathy Taylor were married in October 1973. Up until the day of the

      wedding rehearsal, Taylor was also dating eighteen-year-old Cynthia

      Harshbarger. Two weeks after the wedding, Taylor and Harshbarger met for

      lunch. Taylor told Harshbarger that it was Kathy’s wedding, not his. He stated

      further that he had life insurance on Kathy and that “people do have

      accidents.” Transcript Vol. 5 at 117. He also said that he would take out more

      life insurance and that he and Harshbarger “would have nothing to worry

      about.” Id. at 122. Following this meeting, Harshbarger sent Kathy a letter to

      warn her about what Taylor had said.


[4]   In November 1974, Taylor filled out an application for a life insurance policy

      with Kathy as the insured and himself as the beneficiary. Kathy did not

      accompany Taylor to the insurance agency, and Taylor told the owners that

      Kathy was too ill to do so. The application bears what purports to be Kathy’s

      signature in what was later determined to be Taylor’s handwriting.
      Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 2 of 12
[5]   Over the course of the marriage, Kathy told a number of people that she and

      Taylor were planning to divorce. On March 30, 1975, Kathy visited her family

      in Vincennes for Easter. Before leaving to return to the home she shared with

      Taylor in Terre Haute, Kathy told her sister that she was leaving Taylor and

      would be returning to Vincennes for good the following Wednesday.


[6]   On Wednesday, April 2, 1975, Taylor left home at approximately 7:00 a.m. A

      neighbor saw him return home at around 10:00 a.m. and then leave again with

      Kathy’s dog. Throughout the day, Taylor made stops at a number of

      businesses, including the insurance office of his former coworker, Frederick

      Davis. Taylor and Davis were not friends and Taylor had never been to Davis’s

      office before. Nevertheless, Taylor stayed at the office for forty-five minutes to

      an hour, making strained, superficial conversation while continually checking

      his watch.


[7]   Taylor returned home in the afternoon, at which time he reported discovering

      Kathy’s deceased body. Taylor called his father before calling the police, and

      Taylor’s father arrived at the house before the first responding officer. Taylor

      told Lieutenant Steve Barnhart of the Vigo County Sheriff’s Department that

      when he left home that morning, Kathy was still in bed. Taylor gave an

      extremely detailed account of his day, except that he did not account for his

      whereabouts between 10:00 a.m. and noon. He also failed to mention returning

      home at 10:00 a.m. and leaving with Kathy’s dog. Taylor said that he got

      home at 4:30 and found Kathy’s body in the bathtub with water up to her lower

      lip and a clock radio submerged in the water. Taylor claimed that he

      Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 3 of 12
      unplugged the clock radio and placed it on the counter before pulling Kathy’s

      body out of the tub, laying it on the floor, and covering it with a blanket.

      Taylor also told Lt. Barnhart that Kathy had terminal cancer. Lt. Barnhart

      observed that Taylor’s demeanor was calm and that his clothes were not wet.


[8]   Sheriff’s Deputy Thomas Roberts looked around the house and saw no signs of

      a break-in or a struggle. In the bathroom, he saw that there was no water in the

      bath tub and that a soap dish that had been placed on the edge of the tub near

      the open shower door was undisturbed. Deputy Roberts saw that the clock

      radio read 7:43, and he plugged it in and watched as the time switched over to

      7:44, indicating that the clock was still operational. Deputy Roberts noted that

      the clock radio had an unusually long cord, which allowed it to reach into the

      bathtub from the nearest outlet. A subsequent comparison of the clock radio

      recovered from the bathroom and another clock radio of the same model

      purchased by Deputy Roberts shortly after Kathy’s death revealed that the cord

      on the clock radio found in the bathroom had been replaced. The cord was

      white and over nine feet long, while the cord on the clock radio purchased by

      Deputy Roberts was a dark color and less than six feet long. The cord on the

      clock radio Deputy Roberts purchased was too short to reach into the bathtub

      while plugged into the nearest outlet.


[9]   The investigation went cold, but was reopened in 2014. On July 1, 2014, the

      State charged Taylor with first degree murder. At Taylor’s trial, Dr. Clifford

      Grigg, a professor of electrical engineering at Rose Hulman Institute of

      Technology, testified concerning an experiment he performed with the clock

      Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 4 of 12
       radio recovered from the bathroom on the day Kathy’s death was reported. Dr.

       Grigg connected the clock to an electrical supply and immersed it in water

       while measuring the voltage being applied, the current drawn by the clock while

       immersed, and the resulting voltage in the water. Dr. Grigg confirmed that 120

       volts were being run through the clock radio, which is a standard household

       electrical supply, and determined that the resulting voltages in the water were

       too low to cause death or injury.


[10]   Additionally, forensic pathologist Dr. Roland Kohr reviewed the evidence,

       including police photographs of Kathy’s body and the autopsy report from

       1975, and testified that based on the degree of pulmonary edema, it was very

       unlikely that Kathy had died from electrocution. Rather, Dr. Kohr opined that

       drowning was the most likely cause of death. Dr. Kohr also opined that the

       physical evidence was inconsistent with Taylor’s account of finding Kathy’s

       body in the bathtub at 4:30 p.m. Specifically, Kathy’s body lying flat on the

       floor was not consistent with the body undergoing rigor mortis while in a seated

       position and that there was no discoloration to the body consistent with being

       partially submerged for several hours. Rather, Dr. Kohr testified that the

       evidence indicated that Kathy’s body had been on the floor for many hours.

       Dr. Kohr testified further that rigor mortis would have made it very difficult to

       maneuver Kathy’s body around the sliding glass shower door, and that there

       were no abrasions on Kathy’s body consistent with being dragged over the

       metal shower door tracks. Dr. Kohr noted that there were bruises on Kathy’s

       arms and chin consistent with being held face down in a tub. Dr. Kohr also


       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 5 of 12
       stated that advanced cancer would be quite obvious at a routine autopsy, and

       no such findings were noted in the autopsy report.


[11]   At the conclusion of the trial, the jury found Taylor guilty of first degree

       murder. On March 23, 2016, Taylor was sentenced to the Department of

       Correction for the term of his natural life, in accordance with the law in effect at

       the time of the murder. On April 15, 2016, Taylor filed a motion to correct

       error alleging juror misconduct. Specifically, Taylor alleged that the jury had

       been tainted with extrajudicial information relating to Taylor’s previous

       conviction for the murder of his second wife. The trial court denied Taylor’s

       motion to correct error on June 21, 2016, and this appeal ensued. Additional

       facts will be provided as necessary.


                                           Discussion & Decision


                                      1. Sufficiency of the Evidence


[12]   Taylor first argues that the State presented insufficient evidence to support his

       conviction. In reviewing a challenge to the sufficiency of the evidence, we

       neither reweigh the evidence nor judge the credibility of witnesses. McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the evidence and the

       reasonable inferences supporting the verdict, our task is to determine whether

       there is substantial evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Moore v. State, 652

       N.E.2d 53, 55 (Ind. 1995). Moreover, a conviction may be based purely on

       circumstantial evidence. Id.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 6 of 12
               We will not disturb a verdict if the jury could reasonably infer
               that the defendant is guilty beyond a reasonable doubt from the
               circumstantial evidence presented. On appeal, the circumstantial
               evidence need not overcome every reasonable hypothesis of
               innocence. It is enough if an inference reasonably tending to
               support the verdict can be drawn from the circumstantial
               evidence.


       Id. (citations omitted).


[13]   Taylor’s arguments on appeal essentially boil down to claims that the State did

       not establish Kathy’s cause of death to a reasonable degree of medical certainty,

       that Dr. Grigg’s experiment was flawed, and that the State did not establish

       motive because it presented no evidence that Taylor had actually obtained an

       insurance policy on Kathy or sought to collect on any such policy. We note,

       however, that the State was not required to prove motive in order to support

       Taylor’s murder conviction. See Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016)

       (“The State is not required to prove motive.”). Furthermore, Taylor’s

       arguments are nothing more than invitations to reweigh the evidence, which we

       must decline.


[14]   As set forth above, the physical evidence was not consistent with the account

       Taylor gave of finding Kathy’s body in the bath tub. Additionally, Kathy’s

       sister testified that it had been Kathy’s habit since childhood to take baths at

       night rather than in the morning. Kathy’s sister testified further that there had

       been a stereo system in Kathy’s master bedroom that could be heard throughout

       the whole house and that Kathy had not kept any electronics in the bathroom.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 7 of 12
       In addition to Dr. Kohr’s testimony that it was very unlikely that Kathy had

       died from electrocution, there was evidence that the scene of Kathy’s death had

       been staged to appear as if she had. Furthermore, although Dr. Kohr could not

       conclusively state that Kathy had died as a result of drowning, he was able to

       state that drowning was more likely than not the cause of her death. There

       were no signs of a break-in or struggle at the home, and there was testimony

       that there were serious marital problems. Indeed, Kathy had told her sister that

       she was going to leave Taylor for good on April 2, 1975—the day her death was

       reported. Although it is unclear whether Taylor had been successful in his

       attempt to obtain a life insurance policy on Kathy, Taylor’s statements to

       Harshbarger combined with his apparent forgery of Kathy’s signature on a life

       insurance application suggest that he had been planning Kathy’s death for some

       time. It is also noteworthy that Taylor was able to give an extremely detailed

       account of his entire day, except for the period between 10 a.m. and noon,

       during which a neighbor saw him return to the house and then depart with

       Kathy’s dog. When taken together, the evidence supports a reasonable

       inference that Taylor killed Kathy, whether by drowning or some other means.

       The State presented sufficient evidence to support Taylor’s murder conviction.


                                             2. Juror Misconduct


[15]   Taylor also argues that the trial court abused its discretion in denying his

       motion to correct error based on alleged juror misconduct. Specifically, he

       argues that the jury was tainted as a result of extra-judicial communication

       between a juror and an unauthorized person. We review a trial court’s decision

       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 8 of 12
       on whether a defendant is entitled to a new trial due to juror misconduct for an

       abuse of discretion, keeping in mind that the trial court sits as the initial

       factfinder on the issues raised. Wilkinson v. State, 70 N.E.3d 392, 406 (Ind. Ct.

       App. 2017). A trial court abuses its discretion when its ruling is clearly against

       the logic, facts, and circumstances presented. Palilonis v. State, 970 N.E.2d 713,

       723 (Ind. Ct. App. 2012), trans. denied. On appeal, we will not reweigh the

       evidence, and we will consider conflicting evidence most favorable to the trial

       court’s ruling. Id. “Because the trial court evaluates first-hand the relevant facts

       and circumstances at issue and their impact on the jury, it is in the best position

       to evaluate whether a mistrial is warranted.” Weisheit v. State, 26 N.E.3d 3, 15

       (Ind. 2015), cert. denied.


[16]   A defendant seeking a mistrial due to suspected jury taint resulting from

       improper extra-judicial communications is entitled to a presumption of

       prejudice after making two showings by a preponderance of the evidence: “(1)

       extra-judicial contact or communications between jurors and unauthorized

       persons occurred, and (2) the contact or communications pertained to the

       matter before the jury.” Id. (quoting Ramirez v. State, 7 N.E.3d 933, 939 (Ind.

       2014)). If the defendant makes both showings, the burden shifts to the State to

       rebut the presumption of prejudice by showing that the communications were

       harmless. Id. If the State fails to do so, the trial court must grant a new trial.

       Id.


[17]   Taylor’s motion to correct error was based on a claim that the jury had been

       tainted with extrajudicial information relating to Taylor’s previous conviction

       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 9 of 12
       for the murder of his second wife. In support, Taylor noted that the court

       notified the parties that bailiff Kimberly Rohrbach had reported communicating

       with the jury foreperson following the trial. According to Rohrbach, the

       foreperson told her that another juror, Juror #4, had knowledge of Taylor’s

       prior conviction, and that Juror #4 had shared this knowledge with the

       foreperson.


[18]   In an affidavit attached to Taylor’s motion to correct error, the jury foreperson

       stated that after the verdict was read and all jurors had returned to the jury

       room, Juror #4 said that a family member had previously “[t]ried to tell her

       something” but “[s]he never stated what it was or said it to any members in my

       presence.” Appellant’s Appendix Vol. 3 at 173. In a recorded interview, Juror #4

       indicated that she had spoken to her mother the evening before the last day of

       the trial. Juror #4 stated that she had told her mother that she was a juror on a

       murder case and that she could not discuss the matter. Juror #4’s mother said

       “I don’t know why they let him out in the first place.” Id. at 183. Juror #4

       reminded her mother that she could not talk about the case and the

       conversation went no further. Juror #4 stated that she did not inform the court

       of the conversation because she “didn’t know who [her mother] was talking

       about. I mean in my mind, I didn’t know if we were even talking about the

       same person. She didn’t know who I was on trial with. And so it could have

       been about anybody.” Id. at 186. Juror #4 explained further that after the

       verdict was pronounced and the jury was discharged, the trial judge spoke to

       the jury and informed them that Taylor had been convicted of murdering his


       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 10 of 12
       second wife and released from prison prior to being arrested for Kathy’s

       murder. It was at that point that Juror #4 understood what her mother had

       been referring to, and she said “that’s what my mom was talking about.” Id. at

       184-85. Juror #4 stated that her mother’s statement had no impact on her

       during deliberations and that she did not even think about it again until the

       judge spoke to the jury after the trial.


[19]   In its order denying Taylor’s motion to correct error, the trial court found that

       there was “no evidence that any juror had any information about defendant’s

       prior murder conviction prior to reaching their verdict and being discharged.”

       Id. at 235. The court further found that there was no evidence of juror

       misconduct, nor any indication that juror neutrality was compromised or that

       the jury was exposed to extraneous prejudicial information about Taylor. We

       agree. Whatever Juror #4’s mother intended to communicate, Juror #4 made

       it clear that she did not understand the statement to even refer to Taylor, and

       she certainly did not understand the statement to indicate that Taylor had

       murdered his second wife or committed any other crimes. Further, Juror #4

       clearly stated that her mother’s statement had no effect on her whatsoever

       during deliberations, and she did not communicate what her mother had said to

       any other jury member until after the verdict was pronounced and the jury was

       discharged. Thus, even if we assume that Taylor presented sufficient evidence

       to trigger the presumption of prejudice, the State presented ample evidence to

       rebut that presumption by showing that the extra-judicial communications at

       issue here were harmless.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 11 of 12
[20]   Judgment affirmed.


[21]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1607-CR-1684 | July 27, 2017   Page 12 of 12
