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. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  2. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  3. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  4. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  5. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well