FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                            GREGORY F. ZOELLER
Marion County Public Defender                Attorney General of Indiana
Indianapolis, Indiana
                                             NICOLE M. SCHUSTER
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                           FILED
                                                                       Aug 22 2012, 8:54 am


                             IN THE                                           CLERK
                                                                            of the supreme court,


                   COURT OF APPEALS OF INDIANA
                                                                            court of appeals and
                                                                                   tax court




JORGE HENRIQUEZ,                             )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1201-CR-6
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )



                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Marc Rothenberg, Judge
                          Cause No. 49F09-1006-FD-051001




                                   August 22, 2012

                             OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Jorge Henriquez appeals his conviction of resisting law enforcement, a Class D

felony. Ind. Code § 35-44-3-3 (2006). We affirm.

                                            ISSUE

       Henriquez presents one issue for our review, which we restate as:           whether

Henriquez’s constitutional right to a fair and impartial jury was violated by the alleged

improper influence of an alternate juror.

                        FACTS AND PROCEDURAL HISTORY

       In June 2010, Henriquez was charged with resisting law enforcement and failure

to stop after an accident with an unattended vehicle. A jury trial was held in November

2011 only as to the charge of resisting law enforcement. At some point during jury

deliberations, the bailiff informed the court that she heard someone in the jury room say

something to the effect of “you need to be able to live with your decision.” Tr. p. 220.

The bailiff indicated that she believed the voice was that of the alternate juror. The judge

and counsel discussed the appropriate way to deal with the situation, and the alternate

juror was called into the courtroom. The judge instructed the alternate juror that he was

not to take part in the deliberations or influence the jury in any way. The alternate juror

indicated that he understood that he was not to communicate with the jury, and he was

sent back to the jury room.




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       Following deliberations, the jury returned a verdict of guilty. Henriquez was

sentenced to 365 days with 357 days suspended, and he was placed on probation for sixty

days. It is from this conviction that he now appeals.

                              DISCUSSION AND DECISION

       Henriquez contends that his constitutional right to a fair and impartial jury was

violated by the failure of the trial court to “adequately ascertain if the alternate [juror] had

engaged in deliberations.” Appellant’s Br. p. 10.

       The State observes, and Henriquez concedes, that he did not object to this alleged

error at trial. Thus, Henriquez’s failure to object results in waiver of the issue on appeal.

See Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011) (stating that issue is waived

for appeal if not objected to at trial), trans. denied. Seeking to avoid procedural default,

Henriquez claims that the trial court’s handling of the situation with the alternate juror

constitutes fundamental error.

       The mere fact that error occurred and that it was prejudicial does not satisfy the

fundamental error rule; rather, the doctrine of fundamental error is only available in

egregious circumstances. Dickerson v. State, 957 N.E.2d 1055, 1057 (Ind. Ct. App.

2011), trans. denied. Likewise, it is not enough, in order to invoke this doctrine, to urge

that a constitutional right is involved. Id. To show fundamental error, a defendant must

demonstrate error that caused actual and substantial disadvantage, infecting and tainting

the entire proceeding. Id. In other words, the error must so prejudice the rights of the

defendant as to make a fair trial impossible. Id.

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       “A defendant seeking a new trial because of juror misconduct must show that the

misconduct (1) was gross and (2) probably harmed the defendant.” Griffin v. State, 754

N.E.2d 899, 901 (Ind. 2001), clarified on reh’g, 763 N.E.2d 450 (2002). This Court

reviews the trial court’s determination on this issue for an abuse of discretion, with the

appellant having the burden of showing that the misconduct meets the prerequisites for a

new trial. Id.

       Henriquez cites Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973), in support

of his argument. In Lindsey, the local newspaper published an article during Lindsey’s

burglary trial alleging a rape in connection with the burglary, although Lindsey was not

charged with rape; reporting a prior commitment of Lindsey for an attack of another

woman several years earlier, although this information was not in evidence; and reporting

identification of Lindsey from police mug files by the prosecuting witness, although the

witness had testified that she could not identify Lindsey from police photographs.

Lindsey filed a motion for mistrial, which was denied by the trial court. The trial

proceeded to a verdict of guilty, after which the court conducted an examination of the

jury regarding the newspaper article. From this examination it was disclosed that some

of the jurors had had no exposure to the article but that several had had exposure that

varied from mere awareness of the publication to knowledge from having read a portion

of it. In addition, there were two jurors who had read the entire article. Only these two

jurors were questioned regarding whether their exposure had influenced their decision.



                                            4
They stated that they were not influenced by the article, and the verdict was permitted to

stand.

         On appeal, our Supreme Court held that the failure of the trial court to take

remedial action at the proper time violated Lindsey’s constitutional right to a fair trial.

Id. at 822. The Court stated that upon a suggestion of improper and prejudicial publicity,

the trial court should make a determination as to the likelihood of resulting prejudice

based upon both the content of the publication and the likelihood of a juror having been

exposed to it. Id. at 824. If the risk of prejudice appears substantial, the court should

interrogate the jury as a whole to determine who has been exposed. Id. The Court

further instructed that if there has been no exposure, the trial court should then instruct

upon the hazards of exposure and the necessity of avoiding exposure to extrajudicial

information concerning the case. Id. If any of the jurors have been exposed, they must

be individually interrogated by the court outside the presence of the other jurors to

determine the degree and effect of the exposure; each such juror should then be

individually admonished.      Id.   After all exposed jurors have been individually

interrogated and admonished, the jury should be assembled and collectively admonished.

Id. Finally, the Court directed that if the defendant deems such action insufficient to

remove the peril, he should move for a mistrial. Id.

         Here, Henriquez asserts that, pursuant to the dictates of Lindsey, the alleged

conduct of the alternate juror imposed upon the trial court a duty to determine if the

alternate juror had engaged in deliberations by interrogating the alternate and the regular

                                            5
jury members. While we acknowledge the Lindsey Court’s instruction that the trial court

should make a determination as to the likelihood of resulting prejudice when there has

been a suggestion of improper jury influence, see id. at 824, we are also mindful of the

remainder of the Court’s instruction. That is, the trial court is obligated to interrogate the

jury only if the risk of prejudice appears substantial, not merely imaginary or remote. Id.

       In Agnew v. State, 677 N.E.2d 582 (Ind. Ct. App. 1997), trans. denied, a panel of

this Court acknowledged the procedure set forth in Lindsey but noted that if the trial

court, within its discretion, determines that the jury’s exposure to prejudicial information

does not raise a substantial risk of prejudice, it has no duty to interrogate the jurors or to

take further remedial action. Id. at 584. The allegedly prejudicial occurrence in Agnew

took place when, during deliberations, the jury asked to review the testimony of both

Agnew and the victim. The jury was brought back into the courtroom to hear the taped

testimony.   The victim was also present in the courtroom for the replaying of the

testimony, and she could be heard sobbing and crying during the replaying of Agnew’s

testimony. The trial court subsequently denied both Agnew’s motion for mistrial and

motion to correct error based upon the victim’s conduct and stated that it did not find the

victim’s conduct to be disruptive. Id. In affirming the trial court, this Court noted the

trial court’s determination that the victim’s behavior presented no risk of prejudice. Id.

       We find Henri v. Curto, 908 N.E.2d 196 (Ind. 2009), to be instructive as well. In

Henri, it was claimed that the alternate juror used noises and gestures to communicate

with the regular jurors during deliberations and to interrupt deliberations during

                                              6
statements favorable to Henri’s case. In addition, during deliberations the alternate juror

paced and got on the floor and began exercising, causing other jurors to laugh. Our

Supreme Court determined that while the alleged behavior of the alternate was

disappointing and immature, it did not rise to the level of gross misconduct that would be

injurious to Henri. Id. at 204.

       The facts here are readily distinguishable from those in Lindsey and are more akin

to the facts in Henri. During deliberations in the instant case, the bailiff reported to the

court that she had heard someone in the jury room say, in a “raised voice,” something to

the effect of “you need to be able to live with your decision.” Tr. p. 220. The bailiff

further indicated to the court her belief that the voice she heard was that of the alternate

juror. Upon receiving this information, the court asked the parties how they wanted to

proceed. Defense counsel suggested bringing the jury into the courtroom and reminding

them that the alternate is not to deliberate. Defense counsel also commented that “juries

tend to monitor themselves pretty well” and that if the alternate is trying to deliberate, the

other jurors would stop him or bring it to the court’s attention. Id. at 221. The court then

brought the alternate juror into the courtroom and advised him that he was not to

deliberate, take part in the deliberations, influence the jury, or communicate with the jury

in any way. Further, at the request of defense counsel, the court admonished the alternate

not to speak with the jury about this current communication with the court. The alternate

juror indicated he understood and agreed. Defense counsel raised no objection to the trial

court’s course of action or to the admonishments it gave the alternate juror.

                                              7
       From these facts it is clear that the trial court, in its proper discretion, determined

that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all.

Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s

discretion and, thus, find no error, fundamental or otherwise. Moreover, in seeking a new

trial based upon juror misconduct, Henriquez has not met his burden of showing that the

alleged misconduct was gross and probably injurious to him. See Griffin, 754 N.E.2d at

901.

                                      CONCLUSION

       Based upon the foregoing, we conclude that it was not error for the trial court to

not interrogate the jurors or take other remedial action.            Henriquez’s claim of

fundamental error fails.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.




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