author: Vaidik, Chief Judge.

text:
    Jeffrey FAIRBANKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1707-CR-1675
    Court of Appeals of Indiana.
    FILED August 1, 2018
    Attorneys for Appellant: G. Allen Lidy, Lidy Law, PC, Mooresville, Indiana, John V. Siskopoulos, Siskopoulos Law Firm, LLP, Boston, Massachusetts
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Laura R. Anderson, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] In May 2015, Jeffrey Fairbanks admitted to police that he disposed of his three-month-old daughter's body in an Indianapolis dumpster. Despite extensive search efforts, her body was never found. The State charged Fairbanks with murder and Level 1 felony neglect of a dependent resulting in death. At trial, the State, in order to prove that Janna's death was not an accident, presented evidence that Fairbanks had placed a pillow on his daughter on at least four prior occasions. The jury found Fairbanks not guilty of the murder charge but guilty of the neglect charge.

[2] Fairbanks now appeals arguing, among other things, that the evidence that he had previously placed a pillow on his daughter was inadmissible pursuant to Indiana Evidence Rule 404(b)'s lack-of-accident purpose because he never claimed that his daughter's death was an accident.

[3] Because accident is a subset of intent-that is, a defendant who claims accident is necessarily claiming that the act was not intentional-we conclude that, similar to intent, defendants must affirmatively claim accident before the State can admit evidence pursuant to Evidence Rule 404(b) that the act was not an accident. However, because we find that Fairbanks claimed accident at trial and that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, we conclude that the trial court properly admitted the pillow evidence. Finding no merit to the other arguments that Fairbanks raises on appeal, we affirm his conviction for Level 1 felony neglect of a dependent resulting in death.

Facts and Procedural History

[4] Yolanda Rivera and Fairbanks were the parents of Janna, who was born in February 2015. Yolanda, Fairbanks, Janna, and Yolanda's two other daughters-thirteen-year-old A.G. and eleven-year-old E.M.-lived at Maison Gardens, an apartment complex at 42nd Street and Post Road in Indianapolis. In May 2015, they moved to a nearby house on Candy Apple Boulevard. Yolanda, Fairbanks, and Janna slept in the same bedroom, sharing a king bed.

[5] On Thursday, May 28, Yolanda woke up around 3:30 a.m. to get ready for work. Yolanda changed three-month-old Janna's diaper (Janna did not wake up during the diaper change) and went to the kitchen to prepare a bottle for her. Yolanda then left Janna's bottle on the bed for when she woke up. When Yolanda left the house around 4:15 a.m., she told Fairbanks that she had left a bottle ready for Janna. Yolanda also left her cell phone for Fairbanks because he had lost his cell phone.

[6] Fairbanks had an appointment that morning, so A.G. and E.M. had planned to stay home from school that day to watch Janna. However, Fairbanks's appointment was canceled. Around 8:00 a.m., Fairbanks woke up A.G. to let her know that he would be home after all. A.G. heard Janna crying around that time; she described Janna's crying like "a regular baby would cry." Tr. Vol. III p. 166. A.G. went back to sleep and woke up for good around 11:00 a.m. She again heard Janna crying, but this time-unlike the crying she had heard around 8:00 a.m.-the crying sounded "muffled." Id. at 164. A.G. went downstairs, ate breakfast, and watched television with E.M., who had already woken up and gone downstairs. About twenty minutes later, A.G. went upstairs to use the bathroom, at which point she heard Janna's "muffled" crying again. Id. at 166. After using the bathroom, A.G. went back downstairs.

[7] A little later, Fairbanks came downstairs, went into the kitchen, and asked the girls if there were any trash bags in the house. A.G. said she didn't know. After looking around, Fairbanks went back upstairs for about five minutes and then came back downstairs with Janna, telling E.M. that he was going for a ride. Janna was wrapped in a blanket with only her nose and eyes showing. Janna's eyes were closed, and she was not moving or making any sounds. Fairbanks took Janna to his car, but he did not use the car seat, which was still in the house.

[8] In the meantime, Yolanda had been calling Fairbanks several times throughout the day using a co-worker's cell phone, but Fairbanks never answered. When Yolanda got off work at 1:30 p.m., she went straight home, arriving about twenty minutes after Fairbanks had left with Janna. See id. at 49 (Yolanda testifying that she got home "[a]round 2:00" p.m.). Yolanda was "alarmed" because Janna's car seat was at home, and Fairbanks had not taken any diapers or milk for Janna. Id. at 48-49, 171. Yolanda called Fairbanks several more times, but he still did not answer. Yolanda went to Maison Gardens (they still had keys to their old apartment), but he wasn't there either. Yolanda went back home and waited.

[9] Fairbanks finally returned home around 11:30 p.m. Yolanda and her daughters met him at his car. Yolanda asked Fairbanks where Janna was, and he said Janna was in the car. But when Yolanda looked in the car she only found a box of black trash bags. Yolanda thought this was "strange" because they did not use black trash bags at their house. Id. at 54. Yolanda and her daughters followed Fairbanks inside their house, where Yolanda continued to ask him where Janna was. Fairbanks finally said he had buried Janna in a cornfield and left a cross, but he would not tell them where. As they continued asking him more questions about Janna, Fairbanks's only answer was that she was "in a better place now." Id. at 174.

[10] Yolanda did not call 911 that night because she was scared of Fairbanks. Id. at 57, 63 (Fairbanks threatening Yolanda: "Call the police, and you'll see what happens."); see also Tr. Vol. IV p. 88 (E.M. testifying that Fairbanks was "mad" about the possibility of police being called that night). Yolanda, however, called 911 the following morning, Friday, May 29, when she left the house to take A.G. and E.M. to school. Indianapolis Metropolitan Police Department officers were dispatched to Candy Apple a little before 9:00 a.m. Upon arrival, officers woke up Fairbanks and asked him-about "20 times"-where Janna was. Tr. Vol. III p. 27. Each time Fairbanks responded that he "didn't know." Id. at 27, 95. According to the officers, Fairbanks's demeanor was "annoyingly calm and monotone." Id. at 95. Officers immediately began searching for Janna in the neighborhood retention pond and nearby woods.

[11] Meanwhile, Fairbanks was taken to the police station, where he was interviewed that afternoon by a homicide detective and a missing-persons detective. For over an hour, Fairbanks, who appeared "nonplussed about the whole situation," maintained that he didn't know where Janna was. Tr. Vol. IV p. 15. Fairbanks claimed that he "never hurt [his] baby." Exs. 25 & 25A. The officers then employed a "minimization" technique, whereby they suggested that Janna died from SIDS or from Fairbanks accidentally rolling onto her while he was sleeping. Tr. Vol. IV pp. 20-21. Eventually, Fairbanks admitted that when he woke up, Janna was "already gone," that he didn't know what happened to her, and that he didn't do anything wrong. Exs. 25 & 25A. He said he then "panicked" and drove around with her body for eight hours. Id. After this admission, around 5:30 p.m., the officers and Fairbanks got into a patrol car, and Fairbanks directed them to a dumpster at Maison Gardens, which is where he claimed to have discarded Janna's body. The officers searched the dumpster, but it had recently been emptied. The officers learned that the dumpster contents could have been taken to three possible landfills, and those landfills were extensively searched by officers from several different agencies over the next several days. Janna's body was never found. However, Janna's blanket-the one she was wrapped in when Fairbanks left the house with her on Thursday afternoon-was found.

[12] In any event, after the dumpster was searched that Friday evening, the officers and Fairbanks returned to the police station to resume the interview. See Exs. 26 & 26A. Fairbanks told the officers that Janna woke up around 5:30 a.m., at which point he changed her diaper. Fairbanks said when he changed Janna's diaper, he placed a pillow over her face to "muffle her" because she was crying; however, he claimed that he took the pillow off "right away" and then fed her. Id. The officers gave Fairbanks a doll to demonstrate how he placed the pillow on Janna. Fairbanks said after feeding her, he and Janna stayed up for about two-and-a-half hours before going back to sleep. Id. Fairbanks said when he woke up and realized that Janna was dead, he panicked and tried to figure out what happened: "So when I was panicking I was trying to figure out what happened. You know, that's the only thing I could think of is I rolled over on her, but when I woke up it ... didn't look like that [because Janna was in the middle of the king bed and I was on the edge]." Id. When the interview was over, Fairbanks was free to leave.

[13] During the following weeks, Fairbanks gave interviews to two Indianapolis television stations, WTHR and Fox 59. See Exs. 56 & 57. During these interviews, Fairbanks said Janna woke up around 5:30 a.m., at which point he changed her, he gave her a bottle, and she went back to sleep. Fairbanks said he stayed up until around 8:00 a.m.; he then went back to sleep and did not wake up again until around 1:30 p.m. When Fairbanks picked up Janna, he said she was limp and lifeless, her lips were blue, and he couldn't figure out why. He said he tried to give Janna CPR, but he was unable to revive her. He said he took Janna's body out of the house because he didn't want Yolanda or the girls to see her that way. When asked if he accidentally rolled over Janna when he was sleeping, he said he didn't think so but he didn't know. Ex. 57 (6:07). Fairbanks admitted telling Yolanda that he buried Janna's body when he really discarded her body in a dumpster.

[14] On August 27, 2015-nearly three months after Janna's death-the State charged Fairbanks with Count I: murder and Count II: Level 1 felony neglect of a dependent resulting in death. The charging information for Count I alleged that Fairbanks knowingly killed Janna. The charging information for Count II alleged that Fairbanks, who was at least eighteen years old, knowingly placed Janna, a dependent who was less than fourteen years old, in a situation that endangered her life or health, to wit: he placed and/or left Janna in an unsafe and/or unsupervised environment, which resulted in her death. Appellant's App. Vol. II p. 17.

[15] Before trial, the State filed a notice of intent to admit 404(b) evidence that Fairbanks had "plac[ed] a pillow over [Janna's] face on at least (2) [prior] occasions." Id. at 88. The evidence that the State wanted to admit was statements from A.G.

and E.M. Fairbanks filed a motion in limine seeking to prohibit the State from introducing such evidence, claiming that it violated Indiana Evidence Rules 404(b) and 403. Id. at 83. A hearing was held, and the State argued that the pillow evidence was admissible under Evidence Rule 404(b) :

[I]n our particular case, the defendant has stated that he didn't know how the baby died, the baby died, he got up, he put her in his car, he drove around, and he eventually put it in a dumpster, so that negates - that states that it's an accident. And he's - I mean, he's implying through his actions that it was an accident. He didn't - you know, he denied killing the child in his statement.
So I need to be able to combat that.
* * * * *
I can't prove the exact cause of death because he's destroyed the best piece of evidence, and that is the body. And ... that's not at argument here. He readily admitted over and over and over that he put the body in the dumpster.
* * * * *
So the only way I can get to trying to prove his mistake or his accident is to show his actions and his relationship with this infant. And so that's why the State would object ... to these actions being limined.

Tr. Vol. II pp. 30-31. Defense counsel responded that A.G.'s and E.M.'s statements regarding the prior pillow incidents were "not reliable" and "highly prejudicial." Id. at 40. The trial court took the matter under advisement and later denied Fairbanks's motion in limine on this issue.

[16] A jury trial was held in April 2017. Right before trial started, and as the jury was about to enter the courtroom, the trial court went over last-minute issues with the attorneys. Defense counsel stated:

Judge, we would like to show a ... continuing objection to the pillow evidence that the Court denied in ... the Motion in Limine. I can object, obviously, at the time, but just wanted to show a continuing objection to that evidence.

Tr. Vol. III p. 3. The court responded, "Okay. Anything in response?" Id. The only response the State had was to offer a stipulation on another matter. As the State was discussing the stipulation, the jury entered the courtroom.

[17] During trial, Yolanda testified that she had a normal pregnancy and that Janna was a "healthy baby." Id. at 36. Likewise, a pediatrician testified that Janna was seen at her ten-day and one-month check-ups and that she was generally healthy (Janna was not taken to her two-month check-up; her next check-up would have been her four-month check-up).

[18] A.G. and E.M. then testified about the prior pillow incidents; however, defense counsel did not object during their testimony. Specifically, A.G. testified that she had seen Fairbanks put a pillow on Janna "two or three times," including once at Candy Apple. Id. at 178, 180. A.G. said Fairbanks put "a big long bed pillow" with a red fluffy cover over Janna's head because she was "fussy" and "crying." Id. at 180. Janna was in the middle of the bed at the time. A.G. explained that when she tried to remove the pillow, Fairbanks got angry and told her that she didn't know what she was doing. Fairbanks then told A.G. that the pillow would stop Janna from crying and would relax her and put her to sleep. A.G. explained that the muffled crying she heard on Thursday, May 28 was the same crying that she heard when Janna had a pillow over her face on the previous occasions. Id. at 219-20.

[19] E.M. also testified about seeing a pillow on Janna's face on two occasions. She said when Janna was about two months old and they lived at Maison Gardens, she came home from school one day and saw Janna lying on the bed with a red and white bed pillow on her face. When she took the pillow off Janna, Janna was hot and crying. E.M. went into the living room and asked Fairbanks why there was a pillow on Janna's face. Fairbanks responded that "maybe" Janna put it on her face. Tr. Vol. IV p. 91. E.M. then gave Janna a bath because she was sweaty. E.M. said she saw Janna with a pillow on her face one other time as well. Id. at 92. Defense counsel vigorously cross-examined A.G. and E.M., including why they did not initially tell police or the forensic interviewer about the muffled cries or the prior pillow incidents. Fairbanks did not ask for, and the court did not give, a limiting instruction to the jury about the prior pillow incidents.

[20] During closing argument, the State argued that the evidence supported guilty verdicts for each charge:

Fairbanks is guilty of murder. He smothered Janna with a pillow. He caused her to suffocate and die. And so that means ... the State of Indiana has met its burden. We have met [our] burden by proving Jeffrey Fairbanks knowingly killed Janna ....
In reference to the neglect, we've proven that the defendant is Jeffrey. We've proven the fact that he is over 18 years of age. [We've] proven that he had the care and control of his own daughter, his own three-month-old baby.
We've proven that Janna was a ... dependent. She was less than 14 years of age, [she was] 3 1/2 months.
He did place her in a situation that endangered her life. By placing a pillow over her head, it would be hard to say that that wasn't an unsafe environment. And then he went back to sleep, left her there. Left her like that.
He left her unsupervised because he was sleepy, and it resulted in Janna's death. He just wanted to shut her up.
Any parent ... would know not to put a pillow over a ... three-month-old baby's head.

Tr. Vol. V pp. 31-32. Defense counsel argued that the State didn't meet its burden of proof for either charge:

Charging instrument-they have to prove that he knowingly killed the child. That's murder. Murder.
He didn't murder this child. He loved this child. He didn't neglect this child, right?
They charged unsafe or unsupervised, right? She wasn't unsupervised. He was in the bed.
Now, they might get up and say well, ... he'd sleep ... through her. Well, okay. I find that interesting because if that's the case, if you could never go to sleep as a parent, right, for fear that you would unsupervise your child, then none of us would ever sleep; right?
She was supervised. He was in the same room; right?
Was it unsafe? People sleep with their kids all the time. This is accidental. It's an accident compounded by his stupidity of what he did with his own daughter (indicating). And ... we have owned that; right? We told you we would own it.
* * * * *
Their theory of it's Jeffrey's fault because we don't have a body cuts both ways. Ladies and Gentlemen, they have not proven this case beyond all reasonable doubt. They haven't given you a reason to convict Mr. Fairbanks, and you must find him not guilty on both charges (indicating).

Id. at 71-73.

[21] The jury found Fairbanks not guilty of murder but guilty of Level 1 felony neglect of a dependent resulting in death. The trial court sentenced Fairbanks to the advisory term of thirty years.

[22] Fairbanks now appeals.

Discussion and Decision

[23] Fairbanks raises several issues on appeal, which we restate as follows. First, Fairbanks contends that the evidence that he had previously placed a pillow over Janna's face was inadmissible pursuant to Evidence Rule 404(b). Second, he contends that the prosecutor committed misconduct by presenting more than one theory to prove the neglect-of-a-dependent charge at trial. Third, he contends that juror misconduct occurred during trial when a juror used her phone to research police investigations and credibility, warranting a new trial. Finally, he contends that the neglect-of-a-dependent statute is void for vagueness.

I. Evidence Rule 404(b)

[24] The State argues that Fairbanks has not preserved the issue of whether the evidence that he had previously placed a pillow over Janna's face was inadmissible pursuant to Evidence Rule 404(b) because defense counsel did not object when A.G. and E.M. testified at trial about the incidents. Right before trial started, and as the jury was about ready to enter the courtroom, defense counsel told the trial court that he would like to show a continuing objection to the pillow evidence. The State claims this wasn't good enough because the court "never granted such request." Appellee's Br. pp. 20-21. This Court addressed the proper procedure for using continuing objections in Hayworth v. State , 904 N.E.2d 684 (Ind. Ct. App. 2009). We cautioned that if "the trial court does not specifically grant the right to a continuing objection, it is counsel's duty to object to the evidence as it is offered in order to preserve the issue for appeal." Id. at 692. Here, when defense counsel said he would like to show a continuing objection to the pillow evidence, the trial court said, "Okay," and asked the State if it had a response. Tr. Vol. III p. 3. The State's only response was to offer a stipulation on another matter. As the State was discussing the stipulation, the jury entered the courtroom. We find that the trial court's response was sufficient to preserve this issue for appeal.

[25] Proceeding to the merits, Evidence Rule 404(b) provides that evidence of a crime, wrong, or other act "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," but it "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Evidence Rule 403 provides, in turn, that evidence, even if relevant, should be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Therefore, when the State seeks to use evidence of a crime, wrong, or other act, the court must (1) determine whether the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act and, if so, (2) balance the probative value of the evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). We review a trial court's ruling for an abuse of discretion. Spencer v. State , 703 N.E.2d 1053, 1057 (Ind. 1999).

[26] At trial, the State sought to use evidence of the prior pillow incidents to prove that Janna's death was not an accident. But Fairbanks highlights that he has never claimed that Janna's death was an accident; rather, he has consistently maintained that he doesn't know how she died. See Tr. Vol. V pp. 82-83 (State acknowledging during closing argument that Fairbanks never said how Janna died). Fairbanks argues that evidence of a crime, wrong, or other act is admissible to prove lack of accident only if the defendant first claims accident . The State responds that "[c]ontrary to [Fairbanks's] argument, a defendant does not need to affirmatively advance a contrary claim of accident prior to the State's introduction of prior bad act evidence." Appellee's Br. p. 21. The State asserts that "lack of accident" is not like "intent," which is only available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. See Wickizer v. State , 626 N.E.2d 795, 799 (Ind. 1993).

[27] An accused can be said to have raised a claim of particular contrary intent through pretrial statements to police, opening statement, cross-examination of the State's witnesses, or evidence in the defendant's case in chief. Lafayette v. State , 917 N.E.2d 660, 663 (Ind. 2009) ; 12 Robert L. Miller, Indiana Practice, Indiana Evidence , § 404.214 (4th ed. 2016). Absence of mistake and lack of accident have been described as a more specialized application of the broader category of intent. See 22B Charles Alan Wright, Federal Practice and Procedure , § 5255 (2d ed. 2014) ; see also Wages v. State , 863 N.E.2d 408, 412 (Ind. Ct. App. 2007) (explaining that absence of mistake and lack of accident have been described as "simply a special form of the exception that permits the use of other crimes to prove intent" (quotations omitted) ), reh'g denied , trans. denied . Although the Indiana Supreme Court has held that the concerns that led them in Wickizer to adopt a narrow construction of the intent purpose do not apply to all of the 404(b) purposes, Hicks , 690 N.E.2d at 222 n.12 ; Goodner v. State , 685 N.E.2d 1058, 1061 (Ind. 1997), the Court "has not stated definitively whether [this] approach applies when the prosecution seeks to offer extrinsic act evidence to prove an intermediate inference (such as ... absence of mistake or accident ) leading to an ultimate inference of intent," 12 Miller, § 404.214 (emphasis added).

[28] In short, there is no clear-cut answer under Indiana law whether a defendant must affirmatively claim mistake or accident before the State can admit evidence pursuant to Evidence Rule 404(b) that the act was not a mistake or accident. This Court recognized as much in Wages : "It is unclear whether, under the 'absence of mistake or accident' prong of Rule 404(b), the defendant must first affirmatively claim that he or she did something mistakenly or accidentally before the State can invoke that prong to introduce evidence of other wrongs." 863 N.E.2d at 412 n.3 (citing McCloud v. State , 697 N.E.2d 96 (Ind. Ct. App. 1998) ). According to the Indiana Practice, the absence-of-mistake and lack-of-accident purposes apply "most frequently when the defendant asserts a set of facts explaining the charged conduct as accidental or based on a mistake." 12 Miller, § 404.229 (emphasis added). Indeed, a survey of the cases where evidence has been admitted pursuant to Evidence Rule 404(b)'s absence-of-mistake and lack-of-accident purposes reveals that, in the vast majority of the cases, the defendant has affirmatively claimed that the act was a mistake or accident. See Scalissi v. State , 759 N.E.2d 618, 623 (Ind. 2001) (holding that evidence that the defendant had raped the victim's companion was admissible under lack of accident to rebut the defendant's claim that he accidentally shot the victim); Clemens v. State , 610 N.E.2d 236, 242 (Ind. 1993) ("The purpose specified above, to show the absence of mistake or accident, seems tailor-made to allow the admission of evidence of [the defendant's] abuse of Jordan to rebut his claim that accidental injuries were the cause of the other twin's death."), reh'g denied ; Iqbal v. State , 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (holding that evidence of the defendant's violence toward the victim was admissible under lack of accident to combat the defendant's claim that "[t]he gun went off by itself"); Craun v. State , 762 N.E.2d 230, 237 (Ind. Ct. App. 2002) (holding that evidence that the defendant had allegedly molested other girls was not admissible under lack of accident because the defendant "never stated that he touched [the victim's] vagina, either accidentally or intentionally"), trans. denied ; Brown v. State , 684 N.E.2d 529, 535-36 (Ind. Ct. App. 1997) (holding that other incidents of ghost employment were admissible under lack of accident to rebut the defendant's claim that his conduct was the result of youth and inexperience), trans. denied ; Brown v. State , 659 N.E.2d 652, 655-56 (Ind. Ct. App. 1995) (holding that evidence that the defendant had previously battered the victim was admissible under lack of accident to combat the defendant's claim that the shooting was "an accident"), trans. denied ; but see Nicholson v. State , 963 N.E.2d 1096, 1100 (Ind. 2012) (holding that the defendant's 2006 voyeurism conviction involving the victims was admissible in his newest trial involving the same victims in order to prove "absence of mistake" because it showed that he knew "the exact home he was targeting [and] ... that he was not dialing a random number but the same phone number he dialed in 2006" even though it does not appear from the opinion that defendant made such claims at trial). Indeed, the State conceded at oral argument that it had not found a case where the State admitted evidence under Evidence Rule 404(b) that the act was not a mistake or accident when the defendant had not made such a claim. Oral Arg. Video at 34:00. We thus find that accident and mistake are a subset of intent, in that a defendant who claims mistake or accident is necessarily claiming that the act was not intentional. Accordingly, we conclude that, similar to intent, defendants must affirmatively claim mistake or accident before the State can admit evidence pursuant to Evidence Rule 404(b) that the act was not a mistake or accident.

[29] As for whether Fairbanks affirmatively claimed accident during his pretrial statements to police, opening statement, cross-examination of the State's witnesses, or evidence in the defendant's case in chief, we note that Fairbanks got very close to the line several times when he said he didn't know what happened to Janna and that he didn't do anything wrong. Fairbanks told police during his interview that when he realized that Janna was dead, he panicked and tried to think through what could have happened. He then explained that the "only" thing he could think of was that he "rolled over on her," but it didn't look like he did given their positions in the bed when he woke up. The State argues that Fairbanks then crossed that line during his WTHR interview, which was admitted into evidence at trial. See Oral Arg. Video at 35:30. During that interview, Fairbanks was asked why he discarded his daughter's body in the dumpster. Fairbanks responded that "you never know what you are going to do when you are faced with the loss of a loved one that's that close to you." Ex. 56 (8:09). Fairbanks said he might have reacted differently if he "had known why" Janna died. Id. (8:18). He then explained that at that point in time, he really didn't know much about "SIDS," "roll-over deaths," and "all the things that can happen." Id. (8:23).

[30] In addition, defense counsel cross-examined the pediatrician about the dangers of co-sleeping. The pediatrician testified that it was important not to co-sleep because "someone could roll on the baby, or they could accidentally get smothered against someone at night." Tr. Vol. IV p. 5. When asked if she was aware that Janna was co-sleeping with her parents, the pediatrician said no and highlighted that Yolanda had told the medical assistant at both of Janna's appointments that Janna slept in her own bed. While this is not overwhelming evidence that Fairbanks affirmatively claimed accident, it is sufficient. If there was any doubt whether Fairbanks claimed accident during trial, that doubt was extinguished when defense counsel argued during closing that what happened to Janna was, in fact, an "accident." In particular, defense counsel argued: "Was it unsafe? People sleep with their kids all the time. This is accidental. It's an accident compounded by [Fairbanks's] stupidity [of discarding Janna's body in a dumpster]." Tr. Vol. V p. 72.

[31] The prejudicial effect of the pillow evidence does not substantially outweigh its probative value. See Hicks , 690 N.E.2d at 221, 223. This is so because Fairbanks himself admitted putting a pillow (albeit briefly) on Janna to muffle her on the day that she died. In addition, the prior pillow incidents that the girls testified about did not result in physical harm to Janna, as the pillow was removed. Accordingly, we find that the pillow evidence was admissible under Evidence Rule 404(b)'s lack-of-accident purpose.

[32] But even if we found that the pillow evidence was not admissible under Evidence Rule 404(b)'s lack-of-accident purpose and that the trial court therefore erred by admitting it, the error was harmless. An error is harmless when it results in no prejudice to the "substantial rights" of a party. Durden v. State , 99 N.E.3d 645, 652 (Ind. 2018). The basic premise of the harmless-error rule "holds that a conviction may stand when the error had no bearing on the outcome of the case." Id. To determine whether an error in the introduction of evidence affected the defendant's substantial rights, we assess the probable impact of that evidence upon the jury considering all the other evidence that was properly presented. Blount v. State , 22 N.E.3d 559, 564 (Ind. 2014). If we are satisfied that the conviction is supported by independent evidence of guilt such that there is no substantial likelihood that the challenged evidence contributed to the verdict, the error is harmless. Id.

[33] Here, there is substantial independent evidence that Fairbanks knowingly placed Janna in a situation that endangered her life or health (by placing and/or leaving Janna in an unsafe and/or unsupervised environment), resulting in her death. Appellant's App. Vol. II p. 17. Fairbanks was alone with Janna in the bedroom from 4:15 a.m. to 1:30 p.m. Fairbanks admitted putting a pillow on Janna while he changed her diaper because she was crying. When Fairbanks briefly woke up A.G. around 8 a.m. to tell her that he would be home that day after all, A.G. heard Janna's regular cries. Fairbanks then went back to sleep (sharing a bed with Janna) and didn't wake up again until 1:30 p.m. When A.G. woke up for good around 11 a.m. (which is when Fairbanks claimed to have been sleeping), she heard Janna's muffled cries. About twenty minutes later, A.G. heard Janna's muffled cries again when she went upstairs to use the bathroom. When Fairbanks woke up at 1:30 p.m., Janna was limp and lifeless and her lips were blue. Fairbanks drove around with Janna's body for several hours and eventually discarded her body in a dumpster. Throughout the day, Fairbanks avoided Yolanda's phone calls, and when he finally returned home around 11:30 p.m., he told Yolanda and the girls that he had buried Janna's body in a cornfield (but he wouldn't tell them where). Notably, Fairbanks did not want police called that night and threatened Yolanda. When police came to their house the next morning, Fairbanks claimed that he didn't know where Janna was. And during the first part of his interview with police, Fairbanks continued to claim that he didn't know where Janna was. By the time Fairbanks directed police to the dumpster, it had been emptied, and Janna's body was never found. A reasonable inference from this evidence is that Fairbanks knowingly placed Janna in a situation that endangered her life or health, resulting in her death. Given this evidence, we are convinced that the jury would have reached the same result even if it had not learned about the prior pillow incidents.

II. Prosecutorial Misconduct

[34] Fairbanks next contends that the prosecutor committed misconduct by presenting more than one theory to prove the neglect-of-a-dependent charge at trial. When reviewing a claim for prosecutorial misconduct that has been properly preserved, we determine "(1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise." Ryan v. State , 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied . To properly preserve a claim of prosecutorial misconduct, the defense must, at the time of the alleged misconduct, raise a contemporaneous objection and request an admonishment; if the admonishment is not given or is insufficient to cure the error, the defense must request a mistrial. Thomas v. State , 9 N.E.3d 737, 742 (Ind. Ct. App. 2014). Failure to preserve a claim of prosecutorial misconduct results in waiver of the issue on appeal. Ryan , 9 N.E.3d at 667.

[35] To be successful on such a claim, the defendant must establish the grounds for prosecutorial misconduct and that the alleged misconduct was so prejudicial that the trial court committed fundamental error by failing to sua sponte declare a mistrial. Id. at 667-68. Fundamental error is "an extremely narrow exception" to the waiver rule. Id. at 668. "[T]he defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible." Id. (quotations omitted). Stated another way, to prevail under our fundamental-error analysis, the defendant must show that "under the circumstances the trial judge erred in not sua sponte raising the issue because [the] alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm." Id. (quotations omitted). We review the alleged misconduct and all relevant information given to the jury to determine whether the alleged misconduct "had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible." Id. (emphasis omitted).

[36] Fairbanks claims that the State engaged in misconduct by confusing the jury as to its theory for the neglect-of-a-dependent charge. Fairbanks notes that during opening statement the State argued that he did not "seek[ ] help" for Janna and left her "unsupervised" and "for dead." Tr. Vol. III p. 16 (State arguing that Fairbanks "drove by a fire station multiple times" and "didn't go to the hospital"). However, Fairbanks notes that during closing argument, the State argued that he killed Janna by placing a pillow over her head and leaving the pillow on her while he slept. Fairbanks raised this argument in a motion for judgment on the evidence but did not ask for a mistrial based on prosecutorial misconduct. See Tr. Vol. V pp. 6-7 ("The State's theory on opening was pretty clear, that he failed to render assistance for the child. That is a completely contrary theory to the charge that we are now here for, that the Defense was on notice of.... Even if they were advancing the theory that they charged, there is a complete lack of evidence to support the claim for which they've charged. And so for those reasons, we're moving for a judgment on the evidence ...."). The trial court denied Fairbanks's motion for judgment on the evidence because the neglect charging information generally aligned with the State's pillow theory and there was "enough evidence" to present that count as charged to the jury. Id. at 7-8. That is, the charging information alleged that Fairbanks, who was at least eighteen years old, knowingly placed Janna, a dependent who was less than fourteen years old, in a situation that endangered her life or health (by placing and/or leaving Janna in an unsafe and/or unsupervised environment), which resulted in her death. Appellant's App. Vol. II p. 17. The jury was instructed on this as well. See id. at 241, 243-44. Even assuming that the State alleged a different theory in its opening statement than it presented during closing, the theory that the State submitted to the jury at the end of the case aligned with the charging information and is supported by the evidence presented at trial. And there is no rule that prevents the State from presenting the jury with alternate ways to find the defendant guilty as to one element. See Baker v. State , 948 N.E.2d 1169, 1175 (Ind. 2011) (jury-unanimity case), reh'g denied . Accordingly, Fairbanks has not proven that the alleged misconduct was so prejudicial that the trial court committed fundamental error by failing to sua sponte declare a mistrial.

III. Jury Taint

[37] Fairbanks next contends that juror misconduct occurred during trial when a juror used her phone to research police investigations and credibility, warranting a new trial under the Indiana Supreme Court's decision in Ramirez v. State , 7 N.E.3d 933 (Ind. 2014). An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution. Id. at 936. To preserve impartiality and prevent taint, we prohibit unauthorized contacts and communications with jurors. Id. "Yet no trial is perfect, and we have long held that '[w]hile courts have a duty to ensure an impartial jury ... jurors need not be absolutely insulated from all extraneous influences ....' " Id. (quoting Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819, 823 (1973) ). We therefore entrust trial courts with the difficult responsibility of discerning when extraneous influences become irreparable taint warranting a new trial. Id.

[38] Our Supreme Court clarified in Ramirez the procedure trials courts are to follow in handling instances of juror misconduct. Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred and (2) the contact or communications pertained to the matter before the jury. Id. at 939. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. Id. If the State does not rebut the presumption, the trial court must grant a new trial. Id.

[39] Here, during trial, defense counsel notified the court that his law clerk, who was a certified intern, overheard a juror "playing something on [her] phone about police investigations or credibility or something." Tr. Vol. III p. 80. The juror was alone in the hallway outside the courtroom at the time. The prosecutor also saw the juror in the hallway-which the prosecutor thought was "shocking" since the witnesses were out there as well, id. at 81-but the prosecutor did not hear the juror playing anything on her phone. According to defense counsel, "There wasn't anything specifically about Mr. Fairbanks or this case. [My law clerk] has indicated it sounded more like ... a YouTube video that ... you would go to, a how-to or something." Id. When the court asked defense counsel if he wanted the court to address the matter with the juror, defense counsel expressed reluctance. That is, defense counsel believed that his law clerk was the only one who heard this, and he appeared to be concerned about the consequences to the defense if the juror was questioned but then remained on the panel. Id. at 82. Again, the court asked defense counsel exactly what he was requesting. Defense counsel responded:

[Defense Counsel]: Judge, I - I'm not making a formal request at the time, just bringing that to the Court's attention.
[Trial Court]: Okay. Well, the Court is willing to address it with the juror if the Defense wants. But I've just heard one reason why it sounds like you don't want that to occur. But I don't want anything unclear in this record. Do you want me to address it with this juror?
[Defense Counsel]: Not at this time, unless something else comes up, Judge.

Id. at 83-84.

[40] Fairbanks is not entitled to relief under Ramirez . Ramirez applies only "whenever [d]efendants seek[ ] a mistrial for suspected jury taint." Wahl v. State , 51 N.E.3d 113, 116 (Ind. 2016), reh'g denied ; see also Ramirez , 7 N.E.3d at 940 ("Once defendants move for mistrial , trial courts should assess whether or not there is enough evidence to meet the two-part showing ...." (emphasis added) ). Fairbanks, however, did not seek a mistrial. Cf. Bisard v. State , 26 N.E.3d 1060, 1067-68 (Ind. Ct. App. 2015) (the defendant moved for mistrial upon learning that a juror had performed an internet search on the reliability of blood tests; we affirmed the trial court's remedy of replacing the juror with an alternate as opposed to the more extreme remedy of declaring a mistrial), trans. denied .

[41] Moreover, Fairbanks rejected the trial court's offer to question the juror. He thus invited any error relating to the court's failure to question the juror. See Durden , 99 N.E.3d at 656 (finding that the defendant invited the structural error of the trial court's constitutionally defective procedure for removing and replacing a juror after deliberations had begun by expressly declining "any caveats" or special instructions for the jury and repeatedly assuring the court of his approval of the procedure employed, despite its defects). Fairbanks is not entitled to a new trial based on juror misconduct.

IV. Constitutionality of Neglect Statute

[42] Last, Fairbanks contends that the neglect-of-a-dependent statute is "unconstitutionally void for vagueness." Appellant's Br. p. 31. Fairbanks, however, did not make this constitutional challenge below by way of a motion to dismiss; accordingly, the State argues that he has waived this argument. But because appellate courts have the discretion to consider constitutional challenges even when the defendant has failed to file such a motion, see McBride v. State , 94 N.E.3d 703, 709-710 (Ind. Ct. App. 2018) (citing cases), we address Fairbanks's argument.

[43] A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. Brown v. State , 868 N.E.2d 464, 467 (Ind. 2007).

[44] Due-process principles provide that a penal statute is void for vagueness if it does not clearly define its prohibitions. Id. A criminal statute may be invalidated for vagueness for two reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits or (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement. Id. "[T]here must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to draw such lines." Id. (quotation omitted). A statute "is not void for vagueness if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct." Id. (quotation omitted). And the statute does not have to list specifically all items of prohibited conduct; rather, it must inform the individual of the conduct generally proscribed. Id. The examination of a vagueness challenge is performed in light of the facts and circumstances of each individual case. Id.

[45] Fairbanks challenges the following portion of the neglect statute: "places the dependent in a situation that endangers the dependent's life or health." I.C. § 35-46-1-4(a)(1). He argues:

The prosecution argued that sleeping fits the statutory definition of neglect. Specifically, the prosecution argued: "So the child is not supervised for hours. Just because he's in the room-if he's asleep, he can't supervise." Tr. Vol. V, p. 8. Clearly, the prosecution's argument that a parent can be prosecuted for sleeping attempts to criminalize normal behavior. The statute provides that the mere presence of an adult when a minor dies results in a criminal act. This is far too liberal of a standard for the basis of any statute in the criminal code.

Appellant's Br. p. 32. But Fairbanks's starting premise is wrong; the State did not argue that it's a crime for a parent to sleep. Rather, the State argued that Fairbanks placed Janna in an unsafe environment by placing a pillow on her and then going to sleep while he left the pillow on her:

In reference to the neglect count, we have proven that the defendant placed Janna ... in an unsafe environment. The unsafe environment is that at around eight o'clock in the morning, ... we believe he placed a pillow over her head, and somewhere along the line, he went back to sleep. And he, in his own testimony ..., he says he doesn't wake up until 1:30. So the child is not supervised for hours. Just because he's in the room-if he's asleep, he can't supervise.

Tr. Vol. V pp. 7-8. In short, this is the difference between putting an infant to sleep in a safe environment and then going to sleep versus putting an infant to sleep in an unsafe environment and then going to sleep. Only one of these can be considered neglectful. There is no merit to Fairbanks's constitutional challenge to the neglect statute.

[46] Affirmed.

Barnes, Sr. J., concurs.

Pyle, J., concurs in result with separate opinion.

Pyle, Judge, concurring in result with opinion.

[47] I concur with my colleagues' decision to affirm Fairbanks' conviction for neglect of a dependent resulting in death. However, my journey to our decision takes a short, but important, detour regarding whether Fairbanks properly preserved a request for a continuing objection as an issue for appeal. My review of the record reveals that the motion for a continuing objection was made, but the trial court never ruled on the motion. As a result, I believe the issue was waived.

[48] Continuing objections serve a useful purpose. "That is, they avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time evidence of a given character is offered." Hayworth v. State , 904 N.E.2d 684, 692 (Ind. Ct. App. 2009). As my colleagues ably point out, the procedure for requesting a continuing objection has been established, and "must be carefully followed if attorneys wish to use continuing objections and still properly preserve the admission of specific evidence as an issue on appeal." Id. (emphasis added). First, the attorney objecting to the proffered evidence must ask that the trial court "consider the same objection to be made and overruled each time a class of evidence is offered." Id. The trial court may grant or deny the attorney's request. Generally, a party must make an objection and receive a ruling to each and every piece of evidence believed to be inadmissible. Id. However, a continuing objection is an exception. Id. If the trial court grants the request for a continuing objection, then the attorney "does not have to object each time the class of evidence is subsequently offered." Id. "If, however, the trial court does not specifically grant the right to a continuing objection, it is counsel's duty to object to the evidence as it is offered in order to preserve the issue for appeal." Id. (emphasis added); see also Ind. Evid. R. 103(b) ("Once the court rules definitively on the record at trial a party need not renew an objection or offer proof to preserve a claim of error for appeal.") (emphasis added). "Error can only be predicated on questions presented to and ruled upon by the trial court." Wells v. State , 441 N.E.2d 458, 463 (Ind. 1982) (emphasis added).

[49] In considering whether the trial court specifically granted Fairbanks' request for a continuing objection, it is helpful to reproduce the colloquy surrounding the request:

[Defense Counsel]: I think the only other issue we had is we would - just to make our record clean, we would move to incorporate the hearings - the hearing and the subsequent ruling by the Court on 3/29 and the Court's order from April 13, 2017.
As well as the parties agree to stipulation - two stipulations, I believe. One is just a matter of law, that the State and Defense have gotten together and redacted several portions of defendant's statements. And we agree on those redactions.
We subsequently agreed that as a matter of law, that doesn't open the door - the State can't open the door itself to the matters decided by the Court, specifically the 404(b) and 401, 403 issues that the Court decided in its order on 4/13.
And finally, Judge, we would like to show a continuing - continuing objection to the pillow evidence that the Court denied in 3(G)(2) of the Motion in Limine. I can object, obviously, at the time, but just wanted to show a continuing objection to that evidence.
The Court: Okay. Anything in response?
[Deputy Prosecutor]: I just have this - the stipulation that the defense wanted us to do. It's a stipulation to a matter of law, so it's not to be read to the jury. It's in reference to the redactions. They're going to get transcripts. We've agreed that they get the transcripts and will be watching the video. But, of course, the transcripts have huge amounts of blacked out parts. And so -
(Jury returned into open court at 1:01 p.m.)
The Court: Welcome back. If you'd all remain standing with me, the jurors that is. Everyone else in the courtroom may be seated.
Now that you've been selected to serve as our jury, I need to give you the oath to serve. If you'd all raise your right hands.
(Oath administered to jury)

Tr. Vol. III pp. 2-4. The trial proceeded without the trial court ruling on the request for a continuing objection. I do not believe the trial court's utterance of the word "Okay" was in any way related to a ruling on the motion. The trial court was simply acknowledging the request had been made, it sought a response from the State, and was interrupted by the entry of the jury into the courtroom before it could make a ruling. As a result, the issue was neither ruled upon nor preserved for appeal.

[50] Nevertheless, we may still consider this issue if Fairbanks can show that the admission of the testimony regarding the prior pillow incidents amounted to fundamental error. "The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes a procedural default precluding consideration of an issue on appeal." Jewell v. State , 887 N.E.2d 939, 940 n.1 (Ind. 2008). Our supreme court has noted that on rare occasions, we may use the fundamental error doctrine "to address on direct appeal an otherwise procedurally defaulted claim. But fundamental error is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible." Id. at 942.

[51] For the reasons expressed by my colleagues above, I do not believe Fairbanks has shown that the admission of the pillow evidence constitutes fundamental error. As a result, I rejoin my colleagues and concur in the reasoning and holding as to all other issues.

      Citing page 44 of the transcript (Vol. III), Fairbanks claims that Yolanda testified that it was a "highly unusual event" for Janna not to wake up during her diaper change. Appellant's Br. p. 7. Yolanda, however, did not testify to this.

      The pediatrician testified that Janna had subconjunctival hemorrhages at her one-month checkup. According to the pediatrician, they are "small red spots in the white part of the eye that are kind of near the iris-they're generally not very big-little red spots that indicate[ ] burst capillaries in the eyes." Tr. Vol. III p. 232. They are caused by "[a]nything that causes increased pressure in the head," such as "hitting the eye with something, or coughing very vigorously, or vomiting, or crying very vigorously." Id. at 233.

      Although it's not entirely clear from the girls' testimony, it appears that they testified to separate incidents of seeing a pillow on Janna's face.

      We held oral argument in this case on July 9, 2018. We thank counsel for their presentations.

      Evidence Rule 404(b) previously referenced "absence of mistake or accident." The rule was amended effective January 1, 2014, to separately reference "absence of mistake, or lack of accident."

      We disagree with the State's argument that Stettler v. State , 70 N.E.3d 874 (Ind. Ct. App. 2017), trans. denied , stands for the proposition that a defendant does not need to affirmatively claim mistake or accident before the State can admit evidence that the act was not a mistake or accident.

      Fairbanks emphasizes that he only admitted briefly placing a pillow on Janna. The State responds that the jury was free to choose what portions of Fairbanks's statements to believe and that the jury could have disbelieved Fairbanks when he said he removed the pillow "right away" and instead found that Fairbanks left the pillow on her.

      Fairbanks also challenges his conviction on the ground that the State presented insufficient evidence. Given our conclusion that the unchallenged evidence was strong enough to render harmless any 404(b) error, we need not separately address the sufficiency argument.
      On a related note, Fairbanks argues that the State committed prosecutorial misconduct because "[t]he prosecution's unreasonable, distorted theory that he placed a pillow over his child to get some more sleep is not a reasonable inference from the record, but rather a concocted claim by the prosecution to underpin a conviction based on speculation." Appellant's Br. p. 28. This, however, is merely a rephrasing of Fairbanks's sufficiency argument. Given our conclusion that the evidence is sufficient to support Fairbanks's conviction, this argument fails.

      Fairbanks also claims that the State engaged in misconduct by violating the "rules of evidence" during its questioning of A.G. (by using leading questions) and during its questioning of E.M. (by using hearsay). Although Fairbanks objected at trial, he did so on evidentiary grounds and did not request a mistrial based on prosecutorial misconduct. Neither of these instances amounts to prosecutorial misconduct.


source: Caselaw Access Project

author: Najam, Judge.

license: Public Domain

text:
    Kathy DOTSON, Appellant-Plaintiff, v. STRYKER CORPORATION, Brad Bolinger, Patrick Reagan, Jeffrey M. Sheedy, M.D., Rochester Orthopedics, P.C., and Woodlawn Hospital, Appellees-Defendants.
    Court of Appeals Case No. 18A-PL-220
    Court of Appeals of Indiana.
    FILED August 3, 2018
    Attorney for Appellant: John Johnston, Johnston & Johnston, PC, Wabash, Indiana
    Attorneys for Appellees -, Stryker Corporation &, Patrick Reagan: Douglas B. Bates, Chelsea R. Stanley, Stites & Harbison PLLC, Jeffersonville, Indiana
    Attorney for Appellee -, Brad Bolinger: Matthew W. Melton, Norris Choplin Schroeder LLP, Indianapolis, Indiana
    Attorneys for Appellees -, Jeffrey M. Sheedy, M.D., Rochester Orthopedics, P.C., & Woodlawn Hospital: Jason A. Scheele, Dustin J. Tirpak, Rothberg Logan & Warsco LLP, Fort Wayne, Indiana
   Najam, Judge.

Statement of the Case

[1] Kathy Dotson appeals the trial court's grant of summary judgment in favor of Stryker Corporation ("Stryker"), Brad Bolinger, Patrick Reagan, Dr. Jeffrey M. Sheedy, Rochester Orthopedics, P.C. ("Rochester"), and Woodlawn Hospital ("Woodlawn"). Dotson raises three issues for our review, which we consolidate and restate as the following two issues:

1. Whether the trial court abused its discretion when it considered Dotson's deposition on summary judgment when Dotson had not reviewed or signed her deposition at the time of its designation.
2. Whether the trial court erred when it entered summary judgment on the grounds that Dotson had filed her complaint outside of the relevant statute of limitations.

[2] We affirm.

Facts and Procedural History

[3] In February of 2014, Dotson went to Woodlawn for knee-replacement surgery, which was to be performed by Dr. Sheedy. Shortly before she went under anesthesia, Dotson observed Bolinger and Reagan in her operating room with Dr. Sheedy and other Woodlawn medical personnel. Dotson could tell from their dress that Bolinger and Reagan were not medical personnel-they were in fact employees of Stryker, and they were present in the room ostensibly to discuss Stryker products with Dr. Sheedy as they related to knee replacements. Their presence in the operating room made Dotson uncomfortable, but before she could object she went under anesthesia.

[4] More than two years later, on October 20, 2016, Dotson filed suit against Stryker, Bolinger, Reagan, Dr. Sheedy, Rochester, and Woodlawn. Her complaint alleged that the defendants had committed invasion of privacy when Bolinger and Reagan had been permitted in the operating room during her February 2014 knee-replacement surgery. Dotson further alleged that she had "first learned that [Bolinger and Reagan] were present during the left knee replacement surgery ... after Defendant [Woodlawn had] mailed copies of [Dotson's] medical records to [her] counsel on or after October 21, 2014." Appellant's App. Vol. 2 at 18.

[5] In January of 2017, Dr. Sheedy and Rochester moved for summary judgment on the grounds that, prior to her knee-replacement surgery, Dotson had signed an authorization form in which she had "authorized the presence of product representatives ... during her operation." Id. at 32. Dr. Sheedy and Rochester designated Dotson's signed authorization form along with their motion for summary judgment. The authorization form stated that Dotson "authorize[s] and directs Dr. Jeffrey Sheedy, D[.]O[.] and/or associates or assistants of his/her choice to perform the operation(s) or procedure(s) listed above including whatever incidental procedures and/or additional services, involving anesthesia, radiology, pathology, product representatives , use of biological agents and the like as may be advisable for my well-being." Id. at 39 (emphasis added). Dotson objected to the admissibility of the authorization form, and, in an affidavit she designated in response to the motion for summary judgment, Dotson denied having signed the document.

[6] In April of 2017, Dotson testified in a deposition. On the first day of her deposition, Dotson admitted that she knew at the time of her February 2014 surgery that Bolinger and Reagan were in her operating room, that they were conspicuously not medical personnel, and that their presence in the room made her uncomfortable. She further testified that she did not believe that she had given informed consent to their presence, and that she did not have the opportunity to object to their presence prior to the surgery because, shortly after she had observed Bolinger and Reagan, she was anesthetized.

[7] The first day of Dotson's deposition came to an abrupt end when she became ill, and the second day of Dotson's deposition did not occur until June of 2017. However, in May, between Dotson's two deposition days, Stryker filed its motion for summary judgment. In addition to relying on the authorization form, Stryker also designated and relied on the first day of Dotson's deposition. Relying on that evidence, Stryker argued that Dotson's complaint had been filed outside the relevant statute of limitations. On Dotson's motion, the trial court granted her an extension of time to August 11 to respond to Stryker's motion and designated evidence.

[8] Dotson's second, and last, deposition day occurred on June 5, 2017. During her testimony on that day, Dotson admitted that she had signed the authorization form. However, she testified that she had signed it only after her knee-replacement surgery had already occurred.

[9] On July 12, Reagan moved for summary judgment. Reagan argued both that Dotson had authorized his and Bolinger's presence when she had executed the authorization form and that the statute of limitations had lapsed prior to Dotson filing her complaint. Reagan designated the authorization form and both days of Dotson's deposition. Stryker, Dr. Sheedy, Rochester, and Woodlawn moved to join Reagan's motion for summary judgment, which the trial court permitted. Bolinger later filed his own motion for summary judgment in when he made the same arguments and designated the same evidence.

[10] Along with Reagan's motion for summary judgment and designation of evidence, Reagan and Stryker jointly moved to publish Dotson's deposition. The trial court granted Reagan and Stryker's motion to publish the next day. Dotson continued to have until August 11 to respond to Stryker's motion for summary judgment and designated evidence, and Dotson's response to Reagan's motion and designated evidence was also due on August 11 pursuant to Indiana Trial Rule 56(C).

[11] Thereafter, while the defendants' motions for summary judgment were still pending, Dotson moved for an enlargement of time to August 21 in which to read and sign her deposition transcript, which the trial court granted. On August 21, Dotson read and signed her deposition transcript but attached errata sheets in which she identified and corrected eleven errors in the transcript. None of the errors identified and corrected by Dotson related to her observation of Bolinger and Reagan in the operating room or her immediate suspicion that they were not medical personnel. However, she did clarify that, when she had signed the authorization form after her surgery, she "was in a lot of pain and woozy from the surgery and all of the medication they had given me." Joint Appellees' App. Vol. 2 at 12.

[12] After Dotson had read, signed, and corrected her deposition transcript, on September 28 she moved for the first time to strike the defendants' designation of her deposition in support of their respective motions for summary judgment. According to Dotson, her deposition was inadmissible because, "[w]hen Defendants filed their motions for summary judgment, the time for Kathy Dotson to make changes and sign the deposition had not expired," and none of the defendants redesignated Dotson's deposition after she had read, signed, and corrected it. Appellant's App. Vol. 3 at 119. That same day, Dotson filed a "supplemental memorandum in response to defendants' motion[s] for summary judgment." Appellant's App. Vol. 2 at 12. The defendants moved to strike Dotson's September 28 filings as untimely.

[13] In December, the trial court held a hearing on the pending summary judgment motions. Following that hearing, the court entered an order in which it: granted the defendants' motion to strike Dotson's supplemental memorandum in response to the defendants' motions for summary judgment; denied Dotson's motion to strike the designated version of her deposition; and granted summary judgment to each defendant on the grounds that Dotson's complaint "is time barred in that it was not filed within the applicable statute of limitations." Id. at 146-47. This appeal ensued.

Discussion and Decision

Issue One: Admissibility of the Designated Deposition

[14] On appeal from the trial court's entry of summary judgment, Dotson first argues that the trial court abused its discretion when it considered her designated deposition. Specifically, Dotson contends that her designated deposition was inadmissible because she had not yet read and signed the deposition transcript when the defendants designated it in support of their respective motions for summary judgment. Although the deposition was designated on summary judgment rather than published at trial, the trial court still had "broad discretion in ruling" on the admissibility of the evidence. Moryl v. Ransone , 4 N.E.3d 1133, 1138 n.5 (Ind. 2014). An abuse of that discretion "occurs only where the trial court's decision is clearly against the logic and effect of the facts and circumstances." Robinson v. State , 91 N.E.3d 574, 577 (Ind. 2018).

[15] Indiana Trial Rule 30 discusses depositions upon oral examination. In relevant part, Rule 30 states:

(1) When the testimony is fully transcribed, the deposition shall be submitted to the witness for reading and signing and shall be read to or by him, unless such reading and signing have been waived by the witness and by each party....
(2) If the witness desires to change any answer in the deposition submitted to him, each change, with a statement of the reason therefor, shall be made by the witness on a separate form provided by the [deposing] officer, shall be signed by the witness and affixed to the original deposition by the officer. A copy of such changes shall be furnished by the officer to each party.
(3) If the reading and signing have not been waived by the witness and by each party the deposition shall be signed by the witness and returned by him to the officer within thirty (30) days after it is submitted to the witness. If the deposition has been returned to the officer and has not been signed by the witness, the officer shall execute a certificate of that fact, attach it to the original deposition and deliver it to the party taking it. In such event, the deposition may be used by any party with the same force and effect as though it had been signed by the witness .
(4) In the event the deposition is not returned to the officer within thirty (30) days after it has been submitted to the witness, the reporter shall execute a certificate of that fact and cause the certificate to be delivered to the party taking it. In such event, any party may use a copy of the deposition with the same force and effect as though the original had been signed by the witness .

Ind. Trial Rule 30(E) (emphases added). Trial Rule 32 adds the following relevant language with respect to the effect of certain errors and irregularities in depositions:

Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

T.R. 32(D)(4).

[16] Our Supreme Court has recognized that, in light of the language of our trial rules, "the lack of signature" is not necessarily "an impediment to admission" of a deposition. Drummond v. State , 467 N.E.2d 742, 746 (Ind. 1984). In Drummond , for example, the witness had "the opportunity to read and sign the transcribed depositions" but, "for unknown reasons[, she] declined." Id. The court held that, "[u]nder these circumstances," the trial court did not abuse its discretion when it admitted the unsigned deposition into evidence. Id.

[17] Similarly, we have recognized that, while our trial rules "require[ ] that the witness be permitted to review the transcript of his deposition and then sign it," the rules nonetheless "provide for the use of a deposition at trial even though it is unsigned." Gallagher v. State , 466 N.E.2d 1382, 1387-88 (Ind. Ct. App. 1984). In Gallagher , we held that "the absence of both a signature and formal waiver of signature does not necessarily preclude the admission of a deposition ...." Id. at 1388. We affirmed the admission of the deposition in Gallagher despite such irregularities in part because the complaining party "never argue[d] that any inaccuracy exists in the substance of the deposition." Id.

[18] Dotson has not demonstrated that the trial court's reliance on the designated deposition was so unreasonable as to constitute an abuse of the court's discretion. The Court in Drummond held that the trial court did not abuse its discretion when it relied on an unsigned deposition after the witness had been given the opportunity to sign the deposition transcript but did not do so. Here, while the deposition was unreviewed and unsigned at the time of its designation, there is no dispute that Dotson was subsequently given the opportunity to read and sign it, which she did. And she did so well before the court's hearing and order on the motions for summary judgment, even if the trial court did not rely on the signed deposition when it entered its order. That is, by the time the trial court actually heard and ruled on the motions for summary judgment, Dotson's formal approval of the original deposition transcript was not an issue.

[19] And the substantive accuracy of the designated deposition, at least as it related to the statute of limitations issue, was not seriously in dispute despite the fact that the designated version had been prematurely filed with the court. Just as the complaining party in Gallagher was unable to demonstrate any inaccuracy in the substance of the unsigned deposition, Dotson also has not shown any inaccuracy in the designated deposition insofar as it was used to demonstrate a lapse in the statute of limitations. Despite her bald assertions to the contrary in her brief on appeal, our review of the designated deposition and her subsequent errata sheets reveal that her corrections had no bearing on her testimony as it related to the statute of limitations issue.

[20] Still, Dotson argues that, on summary judgment, the trial court "is limited to the designated evidence." See Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013). That is a correct statement, but Dotson has not shown either that the trial court did otherwise or that, if it did, the court committed reversible error in doing so. Again, the designated deposition and the signed deposition were substantively identical on the dispositive statute of limitations issue.

[21] Dotson also argues that it would be "unjust to allow the moving party to designate evidence ... if the evidence was not admissible when it was designated because it would require the non-moving party to speculate whether it would be admissible when responding ...." Appellant's Br. at 18. We cannot agree. Parties frequently consider and plan for the likelihood that arguably inadmissible evidence might nonetheless get into the record. Moreover, Dotson's argument that the designated deposition should be inadmissible based solely on the timing of her signature to it seeks to elevate form over substance, which we will not do. E.g. , Moryl , 4 N.E.3d at 1139. We cannot say that the trial court abused its discretion when it denied her motion to strike the designated deposition.

Issue Two: Entry of Summary Judgment

[22] We thus turn to Dotson's challenge to the entry of summary judgment. As our Supreme Court has stated:

This Court reviews summary judgment orders de novo . Summary judgment is appropriate if the designated evidence shows there is no genuine issue as to any fact material to a particular issue or claim, and the moving party is entitled to judgment as a matter of law. In viewing the matter through the same lens as the trial court, we construe all designated evidence and reasonable inferences therefrom in favor of the non-moving party. Legal questions, such as contract interpretation, are well-suited for summary judgment. The party appealing the trial court's summary judgment determination bears the burden of persuading us the ruling was erroneous. Nonetheless, we "carefully scrutinize[ ] the trial court's decision to assure that the party against whom summary judgment was entered was not improperly prevented from having its day in court."

Ryan v. TCI Architects/Engineers/Contractors, Inc. , 72 N.E.3d 908, 912-13 (Ind. 2017) (citations omitted; alteration original to Ryan ).

[23] Dotson asserts that the trial court erred when it entered summary judgment because the designated evidence creates a genuine issue of material fact with respect to whether the statute of limitations had lapsed prior to the date on which Dotson filed her complaint. In particular, Dotson asserts that her complaint creates a genuine issue of material fact on this issue because she stated in her complaint that she did not know that Bolinger and Reagan were present in the operating room until October 21, 2014, which was one day less than two years before she filed her complaint. She also argues that "[i]t is reasonable to infer" from her deposition that "Dotson was unconscious during the surgery and had no way of knowing who was present in the operating room ...." Appellant's Br. at 22.

[24] The parties do not dispute that Dotson's claim for invasion of privacy was controlled by a two-year statute of limitations. See Ind. Code § 34-11-2-4(a) (2017) ; Johnson v. Blackwell , 885 N.E.2d 25, 31 (Ind. Ct. App. 2008). "In general, the cause of action of a tort claim accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another." Filip v. Block , 879 N.E.2d 1076, 1082 (Ind. 2008) (quotation marks omitted).

[25] Dotson's deposition shows that on February 25, 2014, she actually knew that Bolinger and Reagan were in her operating room, though she did not know who they were. She testified that she had observed Bolinger and Reagan in her operating room with Dr. Sheedy and other Woodlawn medical personnel prior to the administration of her anesthesia. She further testified that it was immediately apparent to her in the operating room that Bolinger and Reagan were not medical personnel. And she testified that their presence in the operating room made her uncomfortable.

[26] Accordingly, the designated evidence establishes that the statute of limitations for Dotson's claim for invasion of privacy began to run on February 25, 2014. However, Dotson did not file her complaint until more than two years later, on October 20, 2016. Thus, her complaint was barred by the statute of limitations.

[27] Further, we reject Dotson's argument that her contrary statement in her complaint with respect to when she had learned that Bolinger and Reagan were present in the operating room creates a genuine issue of material fact. See T.R. 56(E) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading ...."). We also reject Dotson's assertion that her deposition lends itself to an inference that she did not actually observe Bolinger and Reagan in the operating room because she had been anesthetized. Dotson's testimony is expressly to the contrary.

[28] In sum, the designated evidence demonstrates as a matter of law that the statute of limitations had lapsed before Dotson filed her complaint. Thus, we affirm the trial court's entry of summary judgment for each of the defendants.

[29] Affirmed.

Crone, J., and Pyle, J., concur.

      Dr. Sheedy, Rochester, and Woodlawn-not Stryker-were the parties who had noticed Dotson's deposition. They did not file her original, signed, and sealed deposition with the trial court until October of 2017, though they had joined in filings that had been made prior to that date.

      To be sure, Indiana Trial Rule 5(E)(2)(b) required the parties to obtain the court's permission to file the deposition with the court, but, once the court granted that permission and the deposition was filed, under Trial Rule 5(E)(5) the deposition was published. Ind. Trial Rule 5(E)(2)(b) ("No deposition ... shall be filed with the Court unless ... [a] party desires to use the deposition ... for evidentiary purposes ... and the Court ... orders the filing of the original."); T.R. 5(E)(5) ("The filing of any deposition shall constitute publication."); see 22 Ind. Prac. Civ. Trial Prac. § 22.21 (2d ed. June 2018) ("The requirement for publication by separate motion was eliminated by the Indiana Supreme Court's 1991 amendment" to our trial rules); see also Walnut Creek Nursery, Inc. v. Banske , 26 N.E.3d 648, 653 (Ind. Ct. App. 2015) (noting that "publication of a deposition is required in order to place the deposition before the court," and that "[t]he essence of the requirement is that[,] because a party need not object to [deposition] questions on the grounds of admissibility" during the deposition, "the party can wait and make his objection at [the] trial or hearing when the deposition is read into evidence or otherwise used.") (quoting Drummond v. State , 467 N.E.2d 742, 746 (Ind. 1984) ).

      Bolinger filed his motion for summary judgment and designated evidence on August 15, which made Dotson's response to Bolinger due no later than September 14.

      After she had read and signed the deposition transcript, and after she had subsequently moved to strike the defendants' designated versions of her deposition, Dr. Sheedy, Rochester, and Woodlawn-the parties who had noticed Dotson's deposition-moved to publish the signed deposition such that it would "supplant ... the materials designated in support of all Defendants' dispositive motions." Appellant's App. Vol. 3 at 139-40. Both days of Dotson's deposition, as well as her signature and errata sheets, were filed with the court as exhibits to the renewed motion to publish. Although the record on appeal does not show that the trial court ruled on the renewed motion to publish or otherwise affirmatively ordered that the sealed and signed, original deposition be opened and filed, neither does the record show that Dotson objected to the admissibility of the signed deposition, and she does not suggest on appeal that the signed deposition has been improperly included in the record on appeal. See Appellant's App. Vol. 2 at 13-14; Ind. Appellate Rule 46(A)(8)(a) ; see also Walnut Creek Nursery , 26 N.E.3d at 653 (recognizing that publication of a deposition is required to put the deposition before the court, but that the essence of the publication requirement is to allow parties to object to the deposition's admissibility).

      The transcript of the trial court's summary judgment hearing has not been included in the record on appeal. Thus, we do not consider Dotson's comments in her Reply Brief with respect to statements or objections purportedly made at that hearing.

      Dotson does not delineate between the one-day, unsigned version of her deposition designated by Stryker and the two-day, unsigned version designated by Reagan, which designation the other defendants later joined, and so neither do we. The distinction, at least as it relates to the statute of limitations issue, is not relevant to this appeal.

      In their joint brief on appeal, Stryker and Reagan suggest that Dotson did not timely object to their designation of her deposition, or to either of the motions to publish her deposition, and thus she cannot be heard to complain about the trial court's reliance on the designated deposition. The record on appeal appears to support Stryker and Reagan's position. The trial court had given Dotson until August 11 to respond to Stryker's designation of her deposition, which was the same date she had under Trial Rule 56(C) to respond to Reagan's designation. She did not do so. She also did not timely respond to Bolinger's similar designation, and she did not specifically object to either the July or the October motions to publish her deposition.
      That said, while the trial court struck Dotson's September 28 supplemental response to the summary judgment motions as untimely, the court did not grant the defendants' request to strike Dotson's September 28 objection to the designated deposition even though her objection was similarly untimely. Instead, the trial court denied her objection on the merits, and Stryker and Reagan do not argue on appeal that the trial court's decision to deny Dotson's objection on the merits was an abuse of the court's discretion. See App. R. 46(A)(8)(a). Accordingly, we decline to review the trial court's judgment under a theory of waiver and instead review it on the merits. E.g. , Gr. J. v. Ind. Dep't of Child Servs. (In re D.J.) , 68 N.E.3d 574, 580 (Ind. 2017) (noting "our preference for deciding cases on their merits"). We also decline to review Dotson's argument that the trial court abused its discretion when it struck her supplemental response.

      Stryker and Reagan argue on appeal that the signed deposition "was properly before the trial court for consideration prior to its ruling on the motions for summary judgment." Stryker and Reagan's Brief at 17-19. They are incorrect. The signed deposition was not included in the designated materials, and the trial court did not rule on the October 2017 request to "supplant" the designated versions of the deposition with the signed deposition. See Appellant's App. Vol. 2 at 13-14. Rather, we consider the substance of the signed deposition only insofar as it relates to Dotson's argument that the trial court unreasonably relied on the designated but unsigned deposition.

      Throughout her brief on this issue, Dotson repeatedly refers to and relies on the authorization form, her deposition testimony with respect to that form, and an affidavit she had executed. But we agree with Stryker and Reagan that that evidence is neither here nor there on the question of whether the statute of limitations had lapsed prior to when Dotson filed her complaint.

      That Dotson "did not determine until over two years later the actual identity of the part[ies] causing the injury did not suspend the running of the statute of limitations." Richards-Wilcox, Inc. v. Cummins , 700 N.E.2d 496, 498 (Ind. Ct. App. 1998).

      Insofar as Dotson has attempted to argue a theory of concealment on appeal, that argument is not supported by cogent reasoning or citations to the record, and we do not consider it. App. R. 46(A)(8)(a).