MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any
court except for the purpose of establishing                         Mar 29 2019, 6:52 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Emilee L. Stotts                                         Curtis T. Hill, Jr.
Huntington County Public Defender                        Attorney General of Indiana
Marion, Indiana                                          Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Waldron,                                          March 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1723
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1610-F1-192



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019                Page 1 of 12
[1]   Joseph Waldron appeals his convictions for battery with a deadly weapon as a

      level 5 felony, battery on a child as a level 5 felony, two counts of child

      molesting as level 1 felonies, and child molesting as a level 4 felony. Waldron

      raises one issue which we revise and restate as whether the trial court abused its

      discretion in denying his motion for mistrial. We affirm.


                                      Facts and Procedural History

[2]   At the start of Waldron’s jury trial on May 22, 2018, he faced the following

      charges for acts against his daughter, A.W., who was in kindergarten during the

      2015-2016 school year: Count I, battery with a deadly weapon as a level 5

      felony; Count II, battery on a child as a level 5 felony; Count III, child

      molesting as a level 1 felony; Count IV, child molesting as a level 1 felony; and

      Count V, child molesting as a level 4 felony. The State presented the testimony

      of seventeen witnesses, including A.W.’s teacher, the counselor at the school

      which A.W. attended, A.W.’s foster mother, A.W.’s half-sibling, and a sexual

      assault nurse examiner at the Fort Wayne Sexual Assault Treatment Center

      who conducted an interview with A.W. on June 7, 2016. A.W.’s teacher

      testified that, on the morning of May 10, 2016, A.W. had disclosed to her that

      her bottom hurt and during that day’s school dismissal that “her dad got on her

      bottom with a taser.” Transcript Volume II at 37. The sexual assault nurse

      examiner testified that A.W. had told her: that Waldron “tased [her] on the

      back when [she] was going potty” and “tased [her] again when [she] asked if

      something happened” and that it hurt and she was bleeding; that Waldron

      “sticked his private in [her] bottom” “[l]ots of times” and that it felt bad and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 2 of 12
      hurt; and that Waldron “made [her] put my mouth on his private” “[l]ots of

      times” and that she “almost puked from it.” Transcript Volume IV at 23.


[3]   On the fourth day of trial, Waldron presented his first witness, the principal at

      A.W.’s school from August 2002 until February 25, 2016. He testified that

      A.W. was “a student who loved to be at school . . . who struggled . . .

      academically . . . and at times, struggled, maybe, behaviorally,” that she was

      sent to his office a few times for issues involving “another student, . . . not

      wanting to be with the group, wanting to be by herself, not follow[ing] the

      directions of the teacher,” and that she was involved in a “couple incidents,

      maybe, where she was in the bathroom” and “she would put enough toilet

      paper in there that there would cause an issue.” Id. at 97-99. Shortly after his

      testimony began, the court took a break to review a previously-entered child

      hearsay order pertaining to an objection about the principal’s testimony.


[4]   After a ten-minute recess, the court brought Juror No. 4 into the courtroom,

      and the following exchange occurred outside the presence of the other jurors:


              [The Court]: And you had told – you notified the, um, Bailiff at
              the close of our last break that the, um, witness, who was just on
              the stand, when we took the break, um, that you have a close
              friend, who’s a resource teacher at [A.W.’s school], that disclosed
              information to you about – about him, um, about things that
              occurred during that time frame, is that correct?

              [Juror No. 4]: Yes, and in conversation of, you know, just visiting
              and I would ask her how things were going at school and she
              would just make comments regarding [the principal’s] presence or
              lack of presence on several occasions. Now, I don’t – I’m not – I

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 3 of 12
        know that she worked there when he was there because she had
        worked at Re-Roanoke previously and was transferred to [A.W.’s
        school]. And, you know, as a Resource teacher she was to work
        with students that were having behavioral problems and on one-
        on-one and that type of thing. She never revealed any names or of
        students or anything but, you know, in conversation she would
        talk about things going at school. And that –

        [The Court]: Anything that regards this case?

        [Juror No. 4]: I have no idea, like I said, she –

        [The Court]: Okay, nothing that connected it to this case that she
        said to you?

        [Juror No. 4]: No, but – but she would just – just describe
        incidents that would happen at school and it sounds like some of
        these behaviors may have been related to [A.W.] but I do not
        know that and she did not say any specific names, but I don’t – I
        don’t want to do anything that is going to cause a mistrial or
        something like that and –

        [The Court]: . . . I’m glad you let [the bailiff] know it as soon as
        you realized that. . . . [H]ave you stated any of that information in
        the presence of any of the other jurors?

        [Juror No. 4]: We just talked about it –

        [The Court]: You and [the bailiff]?

        [Juror No. 4]: What I told [the bailiff]?

        [The Court]: Yes.

        [Juror No. 4]: We just discussed it as – in the room.

        [The Court]: Who discussed it in the room?

        [Juror No. 4]: Well, they asked me what it was about and I said –

        [The Court]: Can you tell me what you told them exactly?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 4 of 12
              [Juror No. 4]: Exactly what I told you that I have a close personal
              friend who works at [A.W.’s school], and that’s all I said.

              [The Court]: Okay. You didn’t tell them that – or did you tell
              them anything else other than you had a friend? Did you tell them
              anything about not being able to be objective to this witness?

              [Juror No. 4]: I told them that I wasn’t sure if I could be objective
              to this witness.


      Id. at 104-106. Juror No. 4 indicated she had conveyed that her friend had

      relayed information regarding the principal, that she had not said anything to the

      jury “about thinking any of the information . . . from [her] friend was – had to do

      with [A.W.],” and that she “didn’t go into any detail as to what was confided

      regarding him” to the jury. Id. at 106. When the court asked if she could set

      aside what she had heard from her friend and be objective as to how the facts

      pertain to the case, she stated, “[w]ell, as [the principal] was saying I don’t

      remember, that – that’s what brought all these conversations back to mind were

      things that she told me, that she had complaints as – .” Id. The court asked if she

      meant “like to him not being able to remember things,” and she clarified, “[n]o,

      not remember things. Availability.” Id.


[5]   The State and Waldron’s counsel also questioned Juror No. 4. Id. at 107. She

      answered in the negative when asked, “[w]hen you said you didn’t go into any

      detail with the jurors, did you tell the jurors what your friend had told you”

      about the principal and when asked whether she went into detail with the jury

      about her concerns regarding the principal. Id. In answering the question of

      whether she told the jurors anything that would make them “either not believe

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 5 of 12
      or have heightened belief” of the principal, Juror No. 4 stated, “I don’t know, I

      may have rolled my eyes trying to think how I should – what I should respond”

      and “I don’t know if any of my body language may have been interpreted as

      negative towards the witness, I don’t know.” Id. She indicated that when the

      jurors went into the jury room, she was the first one in and stayed by the door,

      the other jurors “went to their – they were standing” “around their chairs,” and

      she “approached the Bailiff and . . . said I have some concerns.” Id. at 108.

      She indicated that she and the bailiff were “very close together”; that she

      expressed that she felt like she needed to speak to the judge about the principal;

      and that, when the bailiff inquired into what she wanted to share, she had a

      quiet conversation with the bailiff and explained she “had a friend who [was

      employed at A.W.’s school] at this time [who] relayed information” regarding

      the principal and that she “wasn’t sure [she] could be objective” “to this

      witness.” Id. at 108-109. In response to being asked whether she believed any

      jurors were able to hear the conversation, she responded that she did not know.


[6]   Waldron’s counsel moved for a mistrial and argued that what the other jurors

      overheard from Juror No. 4’s conversation with the bailiff was unascertainable

      and that the other jurors “may be tainted” by Juror No. 4’s “inside

      information” regarding the principal. Id. at 110. His counsel stated, “[e]ven if

      her stating that she can’t be objective, the logical conclusion would be then

      there must be a problem with this witness, and that problem could only be

      either credibility or non-credibility, they go hand and hand [sic]. If you can’t be

      objective.” Id. at 111. The court responded, “Correct, I believe it could be


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 6 of 12
      either one,” “but what I’m saying is it’s not – he’s not credible or it’s not he is

      credible,” and “the word objective leaves that open for debate.” Id.


[7]   Determining that it would question the jurors without examination by the

      parties, the court brought each juror into the courtroom individually and asked

      whether he or she overheard any specifics of the conversation between Juror No.

      4 and the bailiff. Each juror besides Juror Nos. 12 and 38 responded in the

      negative to the court’s inquiry. Juror No. 12 indicated:


              Um, no pacifics [sic], just that she has a friend that used to either
              work at [A.W.’s school] or worked in the school system, that she
              has previously had a conversation of this incident but she was
              just now aware when [the principal] was giving his testimony
              that it all came together to her about what she was talking about
              back at [A.W.’s school] with the incident.


      Id. at 115. The court asked Juror No. 12 whether Juror No. 4 shared any

      specifics about any incidents, and Juror No. 12 stated, “[n]o, there were no

      pacifics [sic] and no names given of what she told.” Id. Juror No. 38 stated,

      “the only thing I heard was that she knew [the principal] and that there was, uh,

      she had information from a co-worker” and “[t]hat’s the only thing I heard.”

      Id. at 120.


[8]   The court asked whether Waldron wished for Juror No. 4 to be dismissed, and

      his counsel answered affirmatively and renewed his request for a mistrial. After

      the request was denied, Waldron’s counsel stated, “then, yes, we would be fine

      with striking” Juror No. 4. Id. at 121. The court dismissed Juror No. 4 and, in

      addressing the jury collectively, stated:
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 7 of 12
              We did excuse Juror #4, she didn’t do anything wrong, it wasn’t
              that . . . just sometimes during the court [sic] of a trial, there’s so
              many witnesses and I know when we’re going through . . . the
              jury selection process, the attorneys are asking all these questions
              about people you know, . . . and sometimes you just don’t realize
              certain events until they occur. So . . . it’s one of the reasons we
              have alternates. So, I will – I do just want to admonish you that
              if you . . . heard any – if you did over hear anything, and I know
              I asked each of you individually . . . that you just . . . not consider
              any of that. Not discuss any of that with any of your fellow
              jurors and just resume as though that . . . information never
              occurred[.]


      Id. at 123. At the conclusion of the trial, the jury found Waldron guilty as

      charged.


                                                  Discussion

[9]   The issue is whether the trial court abused its discretion in denying Waldron’s

      motion for mistrial. “[A] mistrial is an extreme remedy that is only justified

      when other remedial measures are insufficient to rectify the situation.” Isom v.

      State, 31 N.E.3d 469, 481 (Ind. 2015) (quoting Mickens v. State, 742 N.E.2d 927,

      929 (Ind. 2001)), reh’g denied, cert. denied, 136 S. Ct. 1161 (2016). The Indiana

      Supreme Court has explained:


              A trial court is in the best position to evaluate whether a mistrial
              is warranted because it can assess first-hand all relevant facts and
              circumstances and their impact on the jury. We therefore review
              denial of a motion for mistrial only for abuse of discretion.
              However, the correct legal standard for a mistrial is a pure
              question of law, which we review de novo.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 8 of 12
       Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014) (citations omitted).


[10]   “An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth

       Amendment and Article 1, Section 13 of our Indiana Constitution.” Id. at 936.

       “Defendants seeking a mistrial for suspected jury taint are entitled to the

       presumption of prejudice only 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. at 939 (citing Currin v. State, 497

       N.E.2d 1045, 1046 (Ind. 1986)). On the other hand, if a defendant fails to make

       the initial two-part showing, the presumption does not apply. Id. “Instead, the

       trial court must apply the probable harm standard for juror misconduct,

       granting a new trial only if the misconduct is ‘gross and probably harmed’ the

       defendant.” Id. (quoting Henri v. Curto, 908 N.E.2d 196, 202 (Ind. 2009)).


[11]   Waldron maintains that he showed by a preponderance of the evidence that a

       prohibited extra-judicial conversation occurred between Juror No. 4 and the

       bailiff. He contends extra-judicial contact and communication occurred during

       the course of his trial and asserts that:


               [Juror No. 4’s] statements in response to the court coupled with
               the fact that two jurors overheard this conversation when
               questioned by the trial court satisfies by preponderance of the
               evidence that there was a conversation between the bailiff and
               [Juror No. 4] that this extrajudicial communication occurred and
               that the communication pertained to the matter of a witness for
               the appellant in his case in chief.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 9 of 12
       Appellant’s Brief at 13.


[12]   To the extent that Waldron argues he is entitled to a presumption of prejudice

       based on Juror No. 4’s conversation with the bailiff in the jury room, he does

       not develop an argument that extra-judicial contact or communications

       occurred between jurors and unauthorized persons. Our review of the record

       reveals that, as soon as she realized that she had prior information about a

       witness, Juror No. 4 informed the bailiff. Specifically, when the court took a

       ten-minute break from the witness’s testimony, Juror No. 4 entered the jury

       room, approached the bailiff, and expressed that she had some concerns and felt

       like she needed to speak to the judge. We do not find that Waldron is entitled

       to a presumption of prejudice under these circumstances.


[13]   We turn to the probable harm standard for juror misconduct and will grant a

       new trial only if the misconduct is “gross and probably harmed” the defendant,

       which we review for an abuse of discretion. See Henri, 908 N.E.2d at 202.

       Waldron contends that, “since this improper conversation took place prior to

       the witness testifying, one cannot know the extent that it tainted the jurors,”

       and highlights “the total circumstances of [Juror No. 4’s] body language in

       conjunction with the conversation with the bailiff.” Appellant’s Brief at 13-14.


[14]   We find that Juror No. 4’s conduct did not constitute gross misconduct. This

       Court found that a juror’s misconduct was gross and probably harmed the

       defendant in Dickenson v. State, 732 N.E.2d 238 (Ind. Ct. App. 2000). In that

       case, during voir dire, a potential juror was asked whether she had a relationship


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 10 of 12
       with the defendant or potential witnesses that would affect her ability to be an

       impartial juror, and she “did not acknowledge that she had such a relationship

       with Dickenson, who had been her neighbor during childhood” and instead

       “stated that she knew a few of the potential witnesses, but that her ability to

       weigh the testimony of those witnesses would not be affected.” 732 N.E.2d at

       240. She also did not respond when asked whether she had prior knowledge

       about the facts of the case. Id. The potential juror was chosen as a juror, and,

       following the verdict of guilty, a member of Dickenson’s family recognized her

       while she was being examined. Id. Further investigation, the submission of

       affidavits, and the testimony of four witnesses revealed that the juror “had lied

       about her relationship to . . . the victim’s wife, and her pre-trial knowledge of

       the case.” Id. On appeal from the denial of the defendant’s petition for post-

       conviction review, this court reversed and ordered a new trial, concluding that

       the juror’s act of lying during voir dire constituted juror misconduct and that

       “because the evidence reveals that [the juror] had knowledge of the case prior to

       trial, and was friendly with the victim’s wife, who testified at trial . . . the

       misconduct was gross and probably harmed the defendant.” Id. at 242.


[15]   Here, by contrast, there is no indication that Juror No. 4 lied or otherwise made

       misrepresentations. When the principal testified, Juror No. 4 became aware of

       who he was and that they shared a personal connection, and she approached

       the bailiff to discuss her concerns. When the court learned of her concerns, it

       questioned Juror No. 4 and determined that it would question the other jurors.

       The record reveals that all of the jurors indicated that they did not hear specifics


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 11 of 12
       of Juror No. 4’s conversation with the bailiff. Juror No. 38 stated that she only

       heard that Juror No. 4 knew the principal and “that there was, uh, she had

       information from a co-worker.” Transcript Volume IV at 120. The court

       removed Juror No. 4 and admonished the jury to not discuss what they heard

       and to resume as though the information never occurred.


[16]   Based on the foregoing, we cannot say that the trial court abused its discretion

       when it denied Waldron’s motion for mistrial. See Henri, 908 N.E.2d at 202-

       204 (holding that the defendant failed to show misconduct which was gross and

       probably harmed the defendant based upon claims that one juror’s receipt of a

       cell phone call created pressure to reach a hasty verdict, and that the alternate

       juror communicated with the regular jurors during deliberations).


                                                   Conclusion

[17]   For the foregoing reasons, we affirm Waldron’s convictions.


[18]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1723 | March 29, 2019   Page 12 of 12
