MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Nov 10 2016, 8:20 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    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
Charles W. Lahey                                        Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles Alexander,                                      November 10, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1601-CR-78
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Elizabeth C.
Appellee-Plaintiff                                      Hurley, Judge
                                                        Trial Court Cause No.
                                                        71D08-1409-F3-7



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016      Page 1 of 12
[1]   Charles Alexander appeals his conviction for Attempted Robbery,1 a Level 3

      Felony. Alexander argues that the trial court erred when it allowed the State to

      impeach him on his prior offenses and that it committed fundamental error by

      not disqualifying three jurors. Finding no error, fundamental or otherwise, we

      affirm.


                                                             Facts
[2]   On September 13, 2014, Sean Diggins and Paul Smith were barbecuing and

      watching football at Diggins’s house. They were planning to use pay-per-view

      to watch a fight on television later that night. Diggins’s two daughters, ages

      eight and five years old, were at his house.


[3]   At some point during the evening, Alexander called Diggins and asked what he

      was doing. Diggins said that he was going to order the fight. Alexander said

      that he was going to come over around 10:30 p.m. Around 10:30 p.m., there

      was a knock at Diggins’s back door, and Diggins got up to answer it. As he

      was doing so, Alexander opened the door and came inside the house. Diggins

      asked him what was going on and Alexander replied, “you know what this is.”

      Tr. p. 114, 116. Alexander then asked where the money was, and he held a

      black revolver to Diggins’s head. He forced Diggins into the living room as

      Diggins tried to hold him back.




      1
          Ind. Code § 35-41-5-1; Ind. Code § 35-42-5-1(1).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 2 of 12
[4]   Smith was sitting in the living room near the front door, and as he stood up, he

      could see Diggins and Alexander fighting and that Alexander was holding a

      black revolver to Diggins’s face. Alexander pointed the gun at Smith and told

      him to sit down. The fight moved across the dining room and into the girls’

      bedroom, where the fight continued on their bed. The girls were awake and

      screaming. The men then moved through the bathroom into Diggins’s

      bedroom. Throughout the fight, Diggins continued to ask Alexander what he

      was doing, and Alexander kept asking where the money was.


[5]   At that time, Smith heard a gunshot and exited the house through the back

      door. He ran to his truck, drove two blocks to his house, called 911, and drove

      back to Diggins’s house, at which time the police were approaching the door.

      After the shot, Alexander ran out of the house through the front door. Diggins

      checked on his kids and called the police. Diggins allowed the police to search

      his house. The police did not find any evidence of a gunshot or of a bullet.


[6]   On September 29, 2014, the State charged Alexander with attempted robbery, a

      Level 3 felony. On November 16-18, 2015, a jury trial took place. During the

      trial, after Diggins testified, the State noticed that a juror was falling asleep in

      the back row and asked whether the jury could take a second to stand up and

      stretch. The trial court stated that it did not want to do that because they had

      just taken a break. After Detective Bayne Bennett testified, the trial court

      observed that Juror Number Three was knitting and that Juror Number Twelve

      was unable to stay awake, at least through Detective Bennett’s testimony. The

      State said that Juror Number Twelve slept through the last witness and that she

      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 3 of 12
      might need to be removed. The trial court stated that it had misunderstood the

      State’s earlier comment about a sleeping juror, thinking that the State had said a

      juror appeared sleepy. The trial court and counsel for both sides agreed that the

      sleeping juror could not remain on the jury.


[7]   As for the knitting juror, the trial court stated, “I think she’s listening too. I

      think she’s—like just she needs to have her hands active while she’s listening

      but . . . I haven’t noticed that she’s not paying attention, I’ll say that. I have

      noticed that she is paying attention.” Id. at 214. The trial court then stated,

      “So maybe she can, you know, listen and do that with her hands but I will

      tomorrow, either myself or through my trusted bailiff, have her advised that she

      cannot bring anything like that into the courtroom.” Id. Shortly thereafter,

      when the proceeding concluded for the day, the trial court excused the sleeping

      juror from jury service and stated that it would replace her with the one

      alternate juror. The trial court then took an overnight recess.


[8]   The next day, the trial court stated that, after the previous day’s proceeding had

      ended, Juror Number One had advised the court that she recognized Diggins

      when he testified as a relative of the father of her child, which she had indicated

      was a possibility during jury selection, and that she recognized people sitting in

      the courtroom gallery. The trial court also stated that Juror Number Seven had

      said that she recognized people in the courtroom gallery.


[9]   The trial court called in Juror Number One and asked her whether, based upon

      her knowledge of who Diggins was and the fact that she knew some people in


      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 4 of 12
       the gallery, she could still judge the evidence fairly and impartially. Juror

       Number One stated, “I do. I mean I feel like I can judge it, you know, fairly.”

       Id. at 223. The trial court asked her whether it caused her any concern that she

       knew anybody, and she stated, “Just a little uncomfortable, not just really

       concern about my well-being . . . but just concerned a little.” Id. The trial court

       then asked whether she thought she could continue serving on the jury and

       fulfill her obligations as a juror, and she said yes. Defense counsel asked Juror

       Number One what her concerns were, and she replied, “I mean just because we

       in [sic] the same neighborhood. . . . I mean I’m not related to them but my

       son’s father is.” Id. at 224. Juror Number One also said that she had not

       spoken to Diggins personally. She said that she did not know the people she

       recognized in the gallery. Defense counsel then asked, “And with all of the

       stuff that we talked about before, you’re okay with all of the instructions and

       what your duties as a juror are?” Id. at 225. Juror Number One replied, “Yeah,

       I understand everything.” Id.


[10]   Next, the trial court called in Juror Number Seven, who said that she thought

       she recognized Skylar Diggins’s father because he was frequently on television.

       The trial court asked her whether it caused her any concern in continuing her

       duties as a juror, and she replied, “No. We’re not even acquaintances.” Id. at

       229. Counsel did not ask any questions.


[11]   The trial court then said it would call in Juror Number Three to tell her to stop

       knitting during the trial. Before the juror entered the room, the trial court said

       that “as long as she feels that she heard everything and was able to pay

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 5 of 12
       attention to everything, I don’t see a big problem with the fact that she was

       knitting yesterday unless it did cause a distraction.” Id. at 230. Defense

       counsel agreed. Juror Number Three stated that she does not have to look at

       her knitting while she knits and that she was able to hear and pay attention to

       all of the evidence. The trial court asked her to not knit in court, and the juror

       herself agreed that it was a distraction. Counsel did not ask any questions.


[12]   After the trial court excused Juror Number Three, it asked the parties whether

       they wanted to make any record about any of the three jurors. The parties

       agreed that Juror Number Three had paid attention during the proceeding and

       made no comments about the other jurors. The trial court asked whether

       everyone was comfortable with proceeding with the twelve jurors; both sides

       replied affirmatively.


[13]   Alexander then testified. Defense counsel asked him whether he had ever been

       convicted of a crime. Alexander testified that he had previously pleaded guilty

       to bank robbery. On cross-examination, the State asked Alexander whether he

       had previous convictions for armed robbery with a deadly weapon and bank

       robbery with a deadly weapon. Alexander answered that there were two

       counts. The State asked, “Two different events, isn’t it?” Id. at 259. Alexander

       replied, “I believe so.” Id. The following exchange then took place:


               Q: Okay. But you don’t deal drugs because you’d get in trouble
               for that, right?


               A: I used to sell drugs.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 6 of 12
               Q: Okay. You just don’t sell them anymore?


               A: Not anymore, no.


               Q: Because you’re on federal parole, right? So if you did that,
               that would violate your federal parole?


               A: Yeah, I am on probation, yes.


               Q: So you were on probation on the night that this happened
               too, right?


               A: Yes.


               Q: So if you got convicted of this crime, that would violate your
               federal parole as well?


[14]   Id. at 259-60. In a private sidebar, defense counsel objected based on relevance.

       The State contended that its questions went to Alexander’s bias and interest in

       the case. The trial court agreed with the State, stating that the question

       “provides a basis for his reason to perhaps fabricate testimony.” Id. at 260. The

       trial court then stated, “But we’ve asked the question. We’re going to move on

       and we don’t get to get into anything more about the convictions now.” Id. at

       261.


[15]   Following the trial, the jury found Alexander guilty as charged. On December

       15, 2015, the trial court sentenced him to sixteen years incarceration. He now

       appeals.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 7 of 12
                                     Discussion and Decision
[16]   Alexander argues that the trial court erred when it allowed the State to impeach

       him on his prior offenses and that it committed fundamental error by not

       disqualifying three jurors.


                                             I. Impeachment
[17]   Alexander first argues that he was impeached with evidence of his parole status

       at the time of the charged offense, and that this impeachment violated multiple

       Indiana Rules of Evidence, including 401, 403, and 616.2


[18]   A trial court has broad leeway regarding the admission of evidence. Smith v.

       State, 889 N.E.2d 836, 839 (Ind. Ct. App. 2008). We will reverse only if the

       decision is clearly against the logic and effect of the facts before the trial court.

       Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010).


[19]   The rules governing the relevance and admission of evidence are well settled.

       In Konopasek v. State, our Supreme Court wrote:


               Indiana Evidence Rule 401 provides a liberal standard for
               relevancy, and we review a trial court’s ruling on relevance for an
               abuse of discretion. Id. Relevant evidence is “evidence having



       2
        Alexander also argues that the admission of evidence violated Rule 609. He did not make a Rule 609
       objection at trial and therefore waives this argument on appeal. In any event, there was no Rule 609
       violation.
       Additionally, Alexander claims that the evidence was inadmissible under Rule 404(b), which controls the use
       of character evidence, or, in the alternative, that the improper use of character evidence constitutes a
       fundamental error. We find that he has waived such arguments for failure to adequately present the issues
       and support his arguments with cogent reasoning and citations to authority. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016          Page 8 of 12
               any tendency to make the existence of any fact that is of
               consequence to the determination of the action more probable or
               less probable than it would be without the evidence.” Ind.
               Evidence Rule 401. Indiana Evidence Rule 616 explicitly makes
               “evidence of bias, prejudice, or interest of the witness for or
               against any party” relevant and admissible for impeachment
               purposes, as this evidence can impact the weight of the witness’s
               testimony. See Dorsey v. State, 802 N.E.2d 991, 993 (Ind. Ct.
               App. 2004). However, relevant evidence “may be excluded if its
               probative value is substantially outweighed by the danger of
               unfair prejudice [.]” Evid. R. 403.


       946 N.E.2d 23, 27-28 (Ind. 2011).


[20]   On direct examination, Alexander testified that he had previously pleaded

       guilty to bank robbery. By being up front about a former conviction, Alexander

       “wanted to leave the impression that he was an honest individual.” Id. at 28.

       The State’s inquiry into the number of his convictions and his parole status

       served to show that, because another conviction could have had an impact on

       his parole status, he had an interest to falsify his testimony and deny any

       involvement in the instant offense. This was “a classic ‘he said-he said’ case

       and evidence impeaching [Alexander] was significantly relevant.” Id.


[21]   Further, we find that the probative value of the evidence was not substantially

       outweighed by unfair prejudice. “In cases where trial testimonies are the bulk

       of the evidence, credibility is a key factor. As a result, impeachment evidence

       can be highly probative.” Id. As the parolee, Alexander understood he faced

       significant jail time if convicted of this offense and thus had an interest in lying.

       Moreover, this testimony was not unfairly prejudicial. The testimony was brief;

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 9 of 12
       the State’s question—“So if you got convicted of this crime, that would violate

       your federal parole as well?”—was never answered by Alexander; and the trial

       court did not allow any other questions on Alexander’s prior convictions or

       parole status. Tr. p. 260-61. In short, we find no error in the admission of this

       evidence.


                                                   II. Jurors
[22]   Alexander next argues that the trial court committed fundamental error by not

       disqualifying three jurors. His argument of bias rests on the fact that Juror

       Number One was concerned that she recognized Diggins as a relative of her

       son’s father and that Juror Number Seven was concerned that she was familiar

       with the Diggins family.3 Because Alexander did not object to the trial court’s

       decision to retain these jurors, he must establish fundamental error to prevail,

       meaning that he must show that the trial court erred by not sua sponte raising

       the issue because the alleged error was a blatant violation of due process and

       presented an undeniable and substantial potential for harm. Ryan v. State, 9

       N.E.3d 663, 668 (Ind. 2014). Fundamental error will be found only in

       egregious circumstances. Id.


[23]   A defendant has a right to an impartial jury; therefore, a biased juror must be

       dismissed. Ind. Const. art. I, § 13; Harris v. State, 659 N.E.2d 522, 525 (Ind.




       3
        Alexander does not make a specific argument as to why the knitting juror should have been disqualified.
       Therefore, we summarily affirm the trial court with respect to this juror.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016        Page 10 of 12
       1995). Determining whether to excuse a juror for bias rests within the sound

       discretion of the trial court. Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998).

       We will sustain the trial court’s decision unless it is illogical or arbitrary. Id.

       “A juror’s bias may be actual or implied, but a court must remove a juror for

       implied bias—that is, regardless of actual bias—only where a relationship exists

       between the juror and one of the parties.” Caruthers v. State, 926 N.E.2d 1016,

       1020 (Ind. 2010). The trial court must weigh the nature and extent of the

       relationship versus the ability of the juror to remain impartial. McCants v. State,

       686 N.E.2d 1281, 1284-85 (Ind. 1997).


[24]   Initially, we note that not only did Alexander’s counsel not object to the trial

       court’s decision, his counsel agreed with the trial court that the jurors were able

       to appropriately perform their duties. At most, therefore, any error was invited

       error, not fundamental error. See Witte v. Mundy ex. rel. Mundy, 820 N.E.2d 128,

       133 (Ind. 2005) (holding that a party may not take advantage of an error that he

       invites).


[25]   Waiver and invited error notwithstanding, we find that the trial court properly

       left these jurors on the panel. We note that, after Juror Number One and Juror

       Number Seven each expressed concerns, the trial court conducted additional

       voir dire with counsel present. The 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. Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000).

       During the additional voir dire, Juror Number One said that she did not

       actually know the parties or the people in the gallery whom she recognized, and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 11 of 12
       she twice affirmed her ability to judge the trial fairly and impartially. Similarly,

       when the trial court asked Juror Number Seven whether she had any concerns

       in fulfilling her duties as a juror because she recognized someone in the

       courtroom, she replied, “No. We’re not even acquaintances.” Tr. p. 229.

       During each additional voir dire, defense counsel had the opportunity to ask the

       jurors questions. After, the trial court asked whether either side wanted to

       make any record about any of the three jurors; defense counsel did not make

       any comments. Thus, the trial court properly determined that neither juror was

       biased and each was able to proceed as a fair and impartial juror. For these

       reasons, we cannot say that the trial court committed fundamental error—or

       any error—in not disqualifying these three jurors.


[26]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-78 | November 10, 2016   Page 12 of 12
