MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jan 31 2020, 9:22 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
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Peru, Indiana                                            Attorney General

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaquail Smith,                                           January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1613
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         34C01-1711-MR-232



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020              Page 1 of 6
                                             Case Summary
[1]   Jaquail Smith appeals his conviction, following a jury trial, for murder. The

      sole issue presented for our review is whether the State presented sufficient

      evidence to support the conviction. Finding the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdict indicate that Smith started living with his

      girlfriend, K.M., in June 2017. K.M. gave birth to a son, A.M., on September

      10, 2017. K.M. was A.M.’s primary caretaker. Smith had watched A.M. only

      one time for K.M. prior to November 2017. On the morning of November 8,

      2017, A.M. woke up at approximately 6:15 a.m. and, according to K.M., was

      behaving completely normal. That evening, K.M. went to run errands, and she

      left eight-week-old A.M. in Smith’s care. Before she left, K.M. fed A.M.,

      burped him, changed his diaper, and left him on her bed. A.M. did not have

      any injuries before K.M. left.


[3]   When K.M. returned to the apartment at approximately 7:00 p.m., she walked

      back to the bedroom and saw Smith sitting on the bed with A.M. K.M.

      immediately noticed that A.M.’s head was swollen on the side. A.M. “was

      trying to cry but he couldn’t and he could hardly breathe … [it was] like he was

      conscious but he wasn’t.” Tr. Vol. 2 at 58. Smith was “flipp[ing] out” and told

      K.M. that they needed to go to the hospital. Id. at 57. Smith repeatedly denied

      knowing what had happened to A.M. The couple took A.M. to Community

      Howard Regional Health Hospital, and from there he was airlifted to Riley


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020   Page 2 of 6
      Hospital for Children in Indianapolis. When K.M. arrived at Riley, a doctor

      informed her that A.M.’s feet “were turning purple” and that “they had to

      revive him a few times on the air lift there and that it’s not looking good.” Id. at

      63. Doctors “encouraged [K.M.] to give it another hour and if nothing changed

      then [she had] the option of whether to pull [A.M.] off the ventilator or not.”

      Id. Shortly thereafter, K.M. chose to remove A.M. from the ventilator. A.M.

      died at 3:25 a.m. on November 9, 2017.


[4]   An autopsy revealed that A.M.’s cause of death was blunt force injury to the

      head. Specifically, A.M. suffered a biparietal skull fracture running from the

      parietal bone of the skull on one side to the temporal bone of the skull on the

      other. Stated another way, “[t]his was a large fracture or break in the skull”

      that then caused extensive “subscalp and subgaleal hemorrhage.” Id. at 103,

      105. This kind of injury would have resulted in “nearly immediate symptoms.

      This would not be a child who appears normal … there would be some visible

      changes … in the baby’s behavior nearly … simultaneously” to the injury. Id.

      at 106. In addition to the blunt force injury to the head, the autopsy revealed

      several older healing injuries including rib fractures, clavicular fractures, and

      ulnar fractures that possibly represented “a pattern of previous injuries.” Id. at

      108.


[5]   Smith was twice interviewed by police. During the first interview, he denied

      having any idea what happened to A.M. He stated that he was alone in the

      apartment with A.M. for at least two hours, that he fell asleep playing video

      games, and that at one point he went to check on A.M. and the baby wasn’t

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020   Page 3 of 6
      breathing. He pinched A.M.’s cheek to wake him up, and A.M. started crying.

      Smith then returned to playing video games. Smith stated that he did not notice

      that A.M.’s head was swollen until after K.M. returned home. During the

      second interview, Smith again denied knowing what happened to A.M. He

      confirmed that he was alone with A.M. for a period of time and that A.M.’s

      head was not swollen when K.M. left the apartment.


[6]   Smith was arrested on November 22, 2017. Smith told his cellmate that he

      killed A.M. Smith claimed that he was in another room when A.M., who had

      been napping, rolled off the bed, hit his head on the nightstand, and started to

      cry. Smith stated that he then “bludgeoned the infant” in the head with a glass

      mason jar. Id. at 148.


[7]   The State charged Smith with murder, level 1 felony aggravated battery, and

      level 2 felony voluntary manslaughter. A jury trial was held on July 11 through

      July 13, 2019. The jury found Smith guilty of murder and aggravated battery.

      Due to double jeopardy concerns, the trial court entered judgment of conviction

      solely on the murder count, and sentenced Smith to a term of sixty-five years.

      This appeal ensued.


                                     Discussion and Decision
[8]   Smith challenges the sufficiency of the evidence supporting his murder

      conviction. When reviewing a claim of insufficient evidence, we neither

      reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

      499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020   Page 4 of 6
       therefrom that support the conviction, and will affirm if there is probative

       evidence from which a reasonable factfinder could have found the defendant

       guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

       trier of fact is enough to support the conviction, then the reviewing court will

       not disturb it. Id. at 500. It is well settled that a conviction “may be sustained

       based on circumstantial evidence alone if that circumstantial evidence supports

       a reasonable inference of guilt.” Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct.

       App. 2003), trans. denied.


[9]    A person who knowingly or intentionally kills another human being commits

       murder. Ind. Code § 35-42-1-1. Here, the State presented uncontroverted

       evidence that Smith was alone with A.M. for approximately two hours on

       November 8, 2017. K.M. testified that when she returned to the apartment,

       A.M.’s head was swollen and he was having trouble breathing. A.M.’s cause of

       death was determined to be blunt force trauma to the head. Smith admitted to

       his cellmate that he bludgeoned A.M. in the head with a glass mason jar

       because the infant was crying. Police found several mason jars in the

       apartment, and Smith’s own testimony confirmed that he went to the apartment

       while A.M. was in the hospital and hid a glass mason jar in the bushes.1


[10]   Smith complains that the evidence was “conflicting” and that the jury was

       presented with “equally plausible” versions of events and chose the State’s

       version rather than his. Appellant’s Br. at 10. This is precisely the jury’s


       1
           Smith claimed that he did so because the mason jar contained marijuana.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020   Page 5 of 6
       prerogative. See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (it is

       exclusive province of jury to weigh conflicting evidence). The State presented

       substantial evidence of probative value to support the jury’s verdict.


[11]   To the extent that Smith also claims that the trial court erred in instructing the

       jury by “misle[ading] the jury on the issue of reasonable doubt,” Appellant’s Br.

       at 8, Smith has waived our review of this issue. First, Smith’s appellate

       argument is not cogent. A party waives an issue where the party fails to

       develop a cogent argument. Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct.

       App. 2009). Moreover, it is well settled that “at a minimum, ‘appellate review

       of a claim of error in the giving of a jury instruction requires a timely trial

       objection clearly identifying both the claimed objectionable matter and the

       grounds for the objection[.]’” Bowman v. State, 51 N.E.3d 1174, 1179 (Ind.

       2016) (citation omitted). Smith failed to object at trial to either the preliminary

       or final jury instructions, and he makes no claim that fundamental error

       occurred. See Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000) (failure to object

       to jury instruction results in waiver on appeal unless giving instruction was

       fundamental error). Accordingly, we need not address his instructional claim.

       His conviction is affirmed.


[12]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020   Page 6 of 6
