Justices: Jury issues don't require new trial

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The Indiana Supreme Court affirmed a jury award in favor of a man accused of rape in a civil suit, ruling the jury didn't receive improper communications and the trial court didn't err in providing impasse assistance to the jury. The high court also explained how to harmonize several Indiana Trial Rules regarding whether an appellate claim of insufficient evidence may be raised for the first time on appeal.

In Susana Henri v. Stephen Curto, No. 49S02-0812-CV-641, Susana Henri appealed the jury verdict that denied her civil damages for rape and awarded Stephen Curto $45,000 on his counterclaim for tortious interference with his contract with Butler University. The two were students at the university, had too much to drink and had sex. Henri claimed it wasn't consensual and filed her civil suit against Curto.

A juror contacted Henri several days after the trial and executed an affidavit alleging various things, including issues during deliberation and an alternate juror influencing the jurors. This led to Henri's motion to correct error, which was denied by the trial court.

On appeal, the Indiana Court of Appeals reversed and remanded for a new trial because of errors during the jury's deliberations.

But the Supreme Court didn't think there were any errors in the jury deliberations or actions of the jurors to warrant a new trial. Henri argued on appeal the jury received improper external communications and the trial court didn't properly assist them at an impasse.

The jurors received the final instructions in writing and orally that said their verdict must be unanimous, so the trial court's response through the bailiff to a jury question regarding the necessity of a unanimous verdict didn't introduce any new information nor was it prejudicial to Henri, wrote Justice Brent Dickson. Because of those instructions, the bailiff's alleged answer to the jury question that the jury had to keep deliberating until a unanimous verdict was reached wasn't coercive or result in an unfair trial, wrote the justice.

Even though a juror used her cell phone during deliberations after receiving a call and speaking to the bailiff, reversal and a new trial aren't warranted on this issue. The high court did caution trial courts on this issue, suggesting the best practice is to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices during trial proceedings and deliberations.

In addition the alternate juror's noises, gestures, pacing, and exercising may be annoying, but it didn't constitute misconduct that rendered an unfair trial, wrote Justice Dickson.

The Supreme Court also rejected Henri's contention the trial court committed reversible error by failing to respond as required by Indiana Code Section 34-36-1-6 to a juror's assertion of a jury deadlock and her request to be excused from the jury after 20 minutes of deliberating. The juror's declarations don't reveal an error or omission in the final instructions sufficient to trigger the statute's requirement of mandatory action by the trial court, wrote the justice. Also, the juror wasn't the jury foreperson and her private statement to the bailiff wasn't presented on behalf of the whole jury.

The dispute over the sufficiency of the evidence to support Curto's counterclaim led the high court to consider whether an appellate claim of insufficient evidence may be raised for the first time on appeal. In order to harmonize the rules of Trial Rule 59(A) with Rules 50(A)(4) and 59(J), the justices held that such a claim is appropriately preserved during trial if it is properly asserted in a motion for judgment on the evidence filed either before the case is submitted to the jury, after submission and before a verdict is entered, or in a motion to correct error.

"We intend the phrase 'during trial' to require that a claim of insufficient evidence must be preserved by proper presentation to the trial court. Such a challenge may not be initially raised on appeal in civil cases if not previously pre-served in the trial court by either a motion for judgment on the evidence filed before judgment or in a motion to correct error," wrote Justice Dickson.

Henri failed to challenge the sufficiency of evidence supporting the verdict in favor of Curto during trial by a Trial Rule 50 motion for judgment on the evidence, or by the post-trial Rule 59 motion to correct error. As such, the issue is procedurally defaulted.

The high court also denied awarding appellate attorney fees to Curto.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

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  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.