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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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