MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                          FILED
court except for the purpose of establishing                  May 25 2017, 9:31 am
the defense of res judicata, collateral
                                                                   CLERK
estoppel, or the law of the case.                              Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kevin Wild                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel Wilson,                                       May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1609-CR-1984
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G01-1501-F1-2920



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017    Page 1 of 10
                                          Case Summary
[1]   On May 24, 2015, following a two-day jury trial, Appellant-Defendant

      Nathaniel Wilson was found guilty of numerous counts of Level 1 felony child

      molesting and one count of Level 1 felony attempted child molesting. He was

      thereafter sentenced to an aggregate forty-year sentence.


[2]   In challenging his convictions on appeal, Wilson contends that the trial court

      denied him the right to an impartial jury. Concluding otherwise, we affirm.



                            Facts and Procedural History
[3]   At some point during 2014, Wilson engaged in a relationship with Kathleen

      Robinson. The relationship progressed to the point that Wilson moved in with

      Kathleen and her daughter, C.R., in August of 2014. During the time Wilson

      lived with Kathleen and C.R., Wilson worked regular hours while Kathleen

      worked longer, more irregular hours. Wilson was often home alone with C.R.

      while her mother worked. In January of 2015, C.R. disclosed to her mother

      and to friends that Wilson had touched her sexually and engaged in sexual

      activity with her from the time he moved in with she and her mom in August of

      2014 until January 17, 2015.


[4]   On January 27, 2015, Appellee-Plaintiff the State of Indiana (“the State”)

      charged Wilson with six counts of Level 1 felony child molesting and one count

      of Level 1 felony attempted child molesting. Wilson’s case went to trial on

      May 23, 2015. During the voir dire process, an initial jury panel of thirty-one

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 2 of 10
      individuals was brought into the court room. Two panels of fourteen

      prospective jurors each participated in voir dire, from which six were chosen as

      jurors.


[5]   The remaining three prospective jurors from the original panel were then joined

      by five other prospective jurors, all of whom had been excused from a different

      court earlier that morning.1 Wilson objected to the addition of the five

      prospective jurors to the jury pool from which the jurors hearing his case would

      be chosen. The trial court noted Wilson’s objection before continuing the voir

      dire process. From those eight prospective jurors, five jurors were chosen.


[6]   Additional prospective jurors entered the courtroom, all of whom had also been

      excused from a different court earlier that morning. 2 Wilson again objected to

      the addition of these prospective jurors to the jury pool from which the jurors

      hearing his case would be chosen. The trial court again noted Wilson’s

      objection before continuing the voir dire process. One juror and two alternate

      jurors were chosen from this group.


[7]   Once the jury had been selected, the parties proceeded with Wilson’s trial. The

      next day, on May 24, 2015, the jury found Wilson guilty as charged. The trial




      1
        The record indicates that the trial court did not re-administer the Jury Rule 13 oath to these five prospective
      jurors.
      2
        The record indicates that the trial court did re-administer the Jury Rule 13 oath to these additional
      prospective jurors.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017                 Page 3 of 10
      court subsequently imposed an aggregate executed forty-year sentence. This

      appeal follows.



                                    Discussion and Decision
[8]   In challenging his convictions on appeal, Wilson contends that the trial court

      denied him the right to an impartial jury. For its part, the State argues that

      Wilson was not denied the right to an impartial jury.


                             I. Waiver and Fundamental Error
[9]   During voir dire, the trial court administered the oath set forth in Indiana Jury

      Rule 133 to the original jury pool members. After the parties failed to fill the

      jury with members of the original jury pool, two groups of prospective jurors

      joined the jury pool from which Wilson’s jury was selected after having been

      dismissed from serving on the jury in other courts. The trial court re-

      administered the Jury Rule 13 oath to the members of the second group of

      additional prospective jurors, but failed to re-administer the Jury Rule 13 oath

      to the members of the first group (“the challenged jurors”).




      3
          Jury Rule 13 provides as follows:

                The jury panel consists of those prospective jurors who answered their summons by
                reporting for jury service. The judge shall administer the following to the prospective jurors
                of the jury panel: “Do you swear or affirm that you will honestly answer any question
                asked of you during jury selection?”

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017                 Page 4 of 10
[10]   Wilson argues that the trial court erred by failing to give the challenged jurors

       the oath set forth in Jury Rule 13. Wilson asserts that “[a] crucial aspect of

       [voir dire] is to assure that prospective jurors are being candid and forthright

       when responding to questions from the judge or attorneys.” Appellant’s Br. p.

       11. As such, he claims that given the trial court’s failure to give the challenged

       jurors the Jury Rule 13 oath, there were “no assurance at all that one-fourth of

       his jury was even honest in responding to questions asked by counsel on voir

       dire because they were never sworn as required by Jury Rule 13.” Appellant’s

       Br. p. 15.


[11]   Review of the record, however, demonstrates that while Wilson’s counsel

       objected to the challenged jurors below, the basis for counsel’s objection was

       not that the trial court did not give them the oath required by Jury Rule 13, but

       rather that the challenged jurors had already been struck from the jury in other,

       unrelated cases, and because they had not been present for the voir dire

       proceedings in their entirety, the challenged jurors had not been present for the

       questioning of other prospective jurors which had led some of the others to

       determine that they could not be fair or impartial. Specifically, defense counsel

       made the following objection:


               [Defense Counsel]: Just for the record, Judge, I just want to
               make an objection to the new jurors that were brought in. My
               concern is, number one, they were obviously let go from another
               jury by one side or other for some reason but secondly, you
               know, they haven’t been able to hear all of the discussions that
               we've been having. We’re starting new with those six or how
               many ever it is and you know, they -- they didn’t get to hear the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 5 of 10
               discussions that we had with all the other jurors which obviously
               led to a lot of people coming out with different biases and -- and
               reasons that they couldn’t be fair so I just wanted to make that
               objection for the record.

               [Trial Court]: Okay. That is noted.


       Tr. Vol. II, p. 106. Defense counsel repeated this objection when the second

       group of additional jurors were brought in. The trial court again noted defense

       counsel’s objection before continuing the voir dire process.


[12]   It is well-settled that “[a] party may not object on one ground at trial and raise a

       different ground on appeal.” White v. State, 772 N.E.2d 408, 411 (Ind. 2002).

       When a defendant fails to object to a claimed error at trial, “he must show

       fundamental error to prevail” on appeal. State v. Eubanks, 729 N.E.2d 201, 205-

       06 (Ind. Ct. App. 2000) (citing Moore v. State, 673 N.E.2d 776, 780 (Ind. Ct.

       App. 1996)). Fundamental error requires a defendant to show greater prejudice

       than reversible error because no objection has been made. Id. at 205.


[13]           To demonstrate fundamental error, the defendant must show that
               the error was so prejudicial that he “could not possibly have had
               a fair trial” and that the error “pervaded the climate of the
               proceedings below, viewed as a whole, depriving the defendant
               of any realistic opportunity for a fair hearing.” [Lacey v. State, 670
               N.E.2d 1299, 1302 (Ind. Ct. App. 1991)] (citations omitted).


       Id. “A fundamental error is a substantial, blatant violation of basic principles of

       due process rendering the trial unfair to the defendant.” Id. at 206 (citing Baird




       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 6 of 10
       v. State, 688 N.E.2d 911, 917 (Ind. 1997)). The Indiana Supreme Court has

       explained the limited applicability of the fundamental error doctrine, stating:

               It is true that we have acknowledged an exception to the waiver
               rule in circumstances where the trial court committed
               “fundamental error.” But we view this exception as an extremely
               narrow one, available only “when the record reveals clearly
               blatant violations of basic and elementary principles [of due
               process], and the harm or potential for harm [can]not be denied.”
               Warriner v. State, 435 N.E.2d 562, 563 (Ind. 1982).


       Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997).


[14]   Again, review of the record reveals that Wilson’s defense counsel did not object

       to the inclusion of the challenged jurors in the jury pool for Wilson’s case on

       the basis that the trial court erred by failing to give the Jury Rule 13 oath to the

       challenged jurors. Wilson, therefore, must demonstrate that the trial court’s

       alleged error amounted to fundamental error.


                           II. The Right to an Impartial Jury
[15]           The Federal and Indiana Constitutions guarantee the right to an
               impartial jury. Ramirez v. State, 7 N.E.3d 933, 936 (Ind. 2014).
               But selecting impartial juries depends upon the parties’
               discernment and the trial court’s discretion to select a panel of
               objective and unbiased jurors “who will conscientiously apply the
               law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423,
               105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Removing prospective
               jurors—whether peremptorily or for cause—who cannot perform
               these tasks is the mechanism parties and trial courts use to
               achieve an impartial jury. Emmons v. State, 492 N.E.2d 303, 305
               (Ind. 1986).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 7 of 10
        Peremptory challenges are “an important auxiliary tool” for that
        purpose. [Whiting v. State, 969 N.E.2d 24, 29 (Ind. 2012)]. They
        give parties the nearly unqualified right to remove any
        prospective juror they wish—restricted only by the parties’ finite
        allotment of challenges and the constitutional ban on racial,
        gender, and religious discrimination. Batson v. Kentucky, 476 U.S.
        79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (race); J.E.B. v.
        Alabama ex rel. T.B., 511 U.S. 127, 140-43, 114 S.Ct. 1419, 128
        L.Ed.2d 89 (1994) (gender); Highler v. State, 854 N.E.2d 823, 829
        (Ind. 2006) (religion). “Unlike challenges for cause, the
        peremptory is often exercised on ‘hunches’ and impressions
        having to do, perhaps, with a prospective juror’s habits,
        associations, or ‘bare looks.’” Merritt v. State, 488 N.E.2d 340,
        341 (Ind. 1986). These “hunches” are difficult if not impossible
        to explain to a trial court or opposing counsel—which is why
        parties are “generally not required to explain [their] reasons for
        exercising a peremptory challenge, and the exercise is not subject
        to the trial court’s control.” Price v. State, 725 N.E.2d 82, 86 (Ind.
        2000). “Our belief that experienced lawyers will often correctly
        intuit which jurors are likely to be the least sympathetic, and our
        understanding that the lawyer will often be unable to explain the
        intuition, are the very reason we cherish the peremptory
        challenge.” J.E.B., 511 U.S. at 148, 114 S.Ct. 1419 (O’Connor,
        J., concurring).

        For-cause motions, by contrast, are available to exclude any
        prospective juror whose “views would ‘prevent or substantially
        impair the performance of his duties as a juror in accordance
        with his instructions and his oath’” and thus violate the
        defendant’s Sixth Amendment rights. Witt, 469 U.S. at 423-24,
        105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct.
        2521, 65 L.Ed.2d 581 (1980)). Similarly, Indiana Code section
        35-37-1-5 (2008) and Indiana Jury Rule 17 list many additional
        bases for removing a prospective juror for cause. Whiting, 969
        N.E.2d at 29. A juror who qualifies for removal under these
        constitutional or statutory criteria may be removed as an
        “incompetent juror,” while a juror “who is not removable for
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 8 of 10
               cause but whom the party wishes to strike” peremptorily is
               termed “objectionable.” Id. at 30 n. 7. Unlike peremptory
               strikes, strikes for cause require trial court approval, so parties
               regularly seek appellate review of unsuccessful for-cause motions.
               This, in turn, requires them to satisfy the exhaustion rule[.]


       Oswalt v. State, 19 N.E.3d 241, 245-46 (Ind. 2014).


[16]   “The exhaustion rule requires parties to peremptorily remove jurors whom the

       trial court refuses to strike for cause or show that they ‘had already exhausted

       [their] allotment of peremptories’ at the time they request for-cause removal.”

       Id. at 246 (quoting Whiting, 969 N.E.2d at 30).


               And “even where a defendant preserves a claim by striking the
               challenged juror peremptorily,” an appellate court will find
               reversible error “only where the defendant eventually exhausts all
               peremptories and is forced to accept either an incompetent or an
               objectionable juror.” [Whiting, 969 N.E.2d at 30]. The rule
               promotes judicial economy: parties should use the tools at their
               disposal to cure error and avoid significant costs that will accrue
               to the judiciary, the parties, and the citizen jurors. Id. (citing
               Merritt, 765 N.E.2d at 1236-37). Failure to comply with the
               exhaustion rule results in procedural default.


       Id. (emphasis in original).


[17]   While we believe that the trial court erred by failing to re-administer the Jury

       Rule 13 oath to the challenged jurors, we conclude that Wilson has failed to

       establish that such error amounted to fundamental error. First, the record

       indicates that Wilson, through counsel, was given the opportunity to and in fact

       did question the challenged jurors during the voir dire process. Second, Wilson

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 9 of 10
       has failed to prove on appeal that he satisfied the exhaustion rule by exhausting

       his peremptory challenges or establish that an “objectionable” juror served on

       his jury. He neither identifies any particular juror who was objectionable nor

       explains why he wished to strike that juror; he simply states that “[h]is ability

       through counsel to determine the biases and prejudicial feelings and beliefs of

       prospective jurors, and for jurors themselves to recognize and acknowledge

       their own in their responses to questioning, have been irreparably damaged and

       his rights prejudiced.” Appellant’s Br. p. 16.


[18]   In Weisheit v. State, the Indiana Supreme Court held that a defendant’s

       conclusory assertion that he was forced to accept biased jurors “is not nearly

       enough” to make a showing of reversible error. 26 N.E.3d 3, 13 (Ind. 2015). In

       the instant matter, Wilson has presented only a conclusory assertion that he

       was forced to accept potentially biased jurors. Wilson has also failed to

       demonstrate that he suffered any prejudice as a result of the manner in which

       the trial court conducted voir dire proceedings. Given the facts of this case

       coupled with the Indiana Supreme Court’s holding in Weisheit, we conclude

       that Wilson has failed to establish that he suffered a fundamental error during

       the voir dire proceedings. Accordingly, we affirm the judgment of the trial

       court.


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


       Mathias, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-1984 | May 25, 2017   Page 10 of 10
