Homsher v. State Of Ind.

• Decision Date: 08 November 2010
• Docket Number: No. 54A01-1003-CR-116,54A01-1003-CR-116
• Parties: BRANTON HOMSHER, Appellant/Defendant, v. STATE OF INDIANA, Appellee/Plaintiff.
• Court: Indiana Appellate Court

BRANTON HOMSHER, Appellant/Defendant,

v.STATE OF INDIANA, Appellee/Plaintiff.

No. 54A01-1003-CR-116

COURT OF APPEALS OF INDIANA

November 8, 2010

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any co urt except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:

MICHAEL J. ANDREOLI JEFFREY S. JACOB

Andreoli & Jacob

Zionsville, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANGELA N. SANCHEZ

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MONTGOMERY CIRCUIT COURT

The Honorable Thomas K. Milligan, Judge

Cause No. 54C01-0803-FB-38

MEMORANDUM DECISION-NOT FOR PUBLICATION

BRADFORD, Judge Appellant/Defendant Branton Homsher appeals from his convictions of and sentences for Class B felony Aggravated Battery¹ and Class B felony Neglect of a Dependant ("neglect").² Homsher raises the following issues:

I. Whether the trial court abused its discretion in denying his motion to correct error on the basis that it failed to investigate alleged improper communication between jurors and protestors congregated outside the courthouse;

II. Whether Homsher received ineffective assistance of trial counsel;

III. Whether the State produced sufficient evidence to sustain Homsher's convictions; and

IV. Whether the trial court abused its discretion in sentencing Homsher.

We affirm.

FACTS AND PROCEDURAL HISTORY

Branton Homsher and Elizabeth Rusk moved in together early in 2006, and M.H., their second child together, was born on January 5, 2008. On February 28, 2008, the babysitter that had been arranged to look after the children that day was unable to come, so Homsher assumed responsibility for M.H. and her brother when Rusk left for work at approximately 5 a.m. M.H. was well when Rusk left. Soon after Rusk returned at approximately 1:45 p.m., she noticed a bruise on the top of the sleeping M.H.'s head that had not been there when she left and that M.H. was wearing different clothing. At approximately 2 p.m., after Homsher left for work, Rusk picked M.H. up to feed her andnoticed "bruises on the left side of her head and [that] the back of her head was bashed in." Tr. p. 161.

As it happens, M.H. had sustained multiple fractures to both sides of her skull; subarachnoid hemorrhaging; contusions to both frontal and temporal lobes; bilateral anterior frontal and anterior temporal subdural hematomas; retinal hemorrhaging; three subacute, healing rib fractures; and bruising on her head and face. Dr. Scott Pirkle of St. Claire Medical Center in Crawfordsville, who was working in the emergency room on February 28, 2008, examined M.H. at approximately 3:15 p.m. and noticed that her head was "probably at least twice the size of a normal infant's head from the massive edema or swelling[.]" Tr. p. 288. Dr. Pirkle noted that M.H. was deteriorating "rapidly" and estimated that her injuries had occurred within the previous twelve hours "at the outside[.]" Tr. p. 305. Doctors at the Riley Children's Hospital in Indianapolis, to which M.H. was eventually brought, were concerned for her life. According to Dr. Jody Smith of Riley, M.H.'s injuries were caused by "shaking and impact" and were non-accidental. State's Ex. 0 p. 21. M.H. had to have a permanent shunt installed to divert spinal fluid to her abdomen and remains at risk for seizure disorder. As of December 11, 2009, twenty-three-month-old M.H. was developmentally delayed by approximately one year, undergoing weekly speech and physical therapy, and developmental therapy every two months.

On March 5, 2008, the State charged Homsher with Class B felony battery, Class B felony aggravated battery, and Class B felony neglect. On September 29, 2009, Homsher's jury trial began.

During jury selection, the following exchange took place:

[Homsher's Counsel]: The court may have mentioned that there are apparently going to be some demonstrators in the area instigated by someone. Did any of you see that as you came in? I think they got here late. Are you all ready for that such that if you get talked to and identified and challenged that you're willing and able to brush that off and go about your business? Is there anyone who feels they might be bothered be that that, they' re going to be uncomfortable by being spotlighted perhaps and put on the spot. Is that something you can see happening?

[Prospective Juror] DRAKE: How would they know that we were the jurors though?

[Homsher's Counsel]: Well, for all I know they're in the audience. What if they do and someone comes up and wants to talk to you about the case, not necessarily asks you what's going on that would definitely be improper.

[Prospective Juror] DRAKE: I wouldn't tell them anything

[Homsher's Counsel]: My hypothetical is maybe haranguing might be a hard word, but they'd be talking to you or preaching to you. Can you just walk away?

Tr. pp. 67-68.

During trial, the following exchange took place during a recess:

COURT: Mr. Hopkins, why don't you have a seat there. It wasn't clear to me when Mrs. Weliever came back and reported this last time after what you' d said where you were on this. As far as your wife having worked with Ms. Rusk and your step-daughter having had a t-shirt. Nobody has any objection to that as long as your [sic] okay with continuing and because of that contact you don't have any preconceived notion or anything like that, but then the message you sent back was a little confusing and I just wanted to ask you to explain that if you would.

JUROR HOPKINS: The way I feel about it is he has admitted to placing the baby in the pack and play on a pillow. Didn' the also admit he did it with some authority, placing it hard in there, something.

COURT: That's for you as a juror to decide.

JUROR HOPKINS: What it amounts to is I don't like child abuse at all of any kind. If that's the way it was if he did use force to put it in the pack and play it can't be good.

COURT: My question for you is you've heard only as Paul Harvey says you've only heard part of the story and there's more and the question is can you keep your mind open until you've heard everything and not jump to a conclusion before we finish the trial?

JUROR HOPKINS: I doubt it. I just don't go for it. I got it in my head, so probably not no.

[Homsher's Counsel]: We would ask that he be excused.

COURT: Okay. We'll excuse you then. Okay. That takes care of that.

Tr. pp. 176-77.

The jury found Homsher guilty as charged. On December 11, 2009, the trial court sentenced Homsher to fifteen years of incarceration for aggravated battery and ten years for neglect, both sentences to be served consecutively with all of the neglect suspended to probation.³ The trial court found, as aggravating circumstances, that the extent of M.H.'s injuries was greater than necessary to prove the crimes for which Homsher stood convicted, M.H.'s tender age, that the crimes were committed in the presence of M.H.'s sibling, Homsher's violation of his position of trust, and that M.H. suffered from shaken baby syndrome. The trial court found, as mitigating circumstances, Homsher's lack of a previous history of violence, anger management issues, abusive behavior, criminal or juvenile history, disciplinary issues in school or jail, and substance abuse and that his character is typically reported to be that of a helpful and caring person. The trial court found that the aggravating circumstances outweighed the mitigating.

On January 11, 2010, Homsher filed a motion to correct error, alleging that improper communication with jurors occurred during trial, he received ineffective assistance of trial counsel, and the trial court abused its discretion in sentencing him. Attached to the motion were several affidavits regarding protesters who gathered near the courthouse during Homsher's trial and who, inter alia, allegedly exhorted passersby to "Honk for Baby [M.H.]" and "Honk to Convict the Monster[.]" Appellant's App. p. 96. Some of the affiants averred that honking was audible in the courtroom during Homsher's trial. On January 26, 2010, the State moved to strike Homsher's affidavits and opposed his motion to correct error. On February 3, 2010, Homsher filed amended versions of most of the original affidavits. On February 4, 2010, the trial court granted the State's motion to strike the affidavits and denied Homsher's motion to correct error and, on February 24, 2010, denied Homsher's motion to reconsider.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Denying Homsher's Motion to Correct Error

Homsher's motion to correct error was based on his contention that there was improper communication with the members of the jury, specifically, that they must have had contact with protesters outside the courthouse. As an initial matter, we note that Homsher's argument on this claim depends largely on the affidavits attached to his motion to correct error. Homsher, however, has made no argument regarding the trial court's grant of the State's motion to strike the affidavits, and we will therefore not consider them in resolving this or any other issue.

Homsher contends that the trial court should have acted on its own to determine the prejudicial effect of the protestors on the jury. Homsher did not raise this issue in the trial court and is essentially making a claim of fundamental error on appeal, although not precisely stated in those terms. Fundamental error is "error so egregious that reversal of a criminal conviction is required even if no objection to the error is registered at trial." Hopkins v. State, 782 N.E.2d 988, 991 (Ind. 2003). The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible. Krumm v. State, 793 N.E.2d 1170, 1181-82 (Ind. Ct. App. 2003). Fundamental error requires prejudice to the defendant. Hopkins, 782 N.E.2d at 991.

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