Riley, J.
Appellant-Defendant, Saundra Wahl (Wahl), appeals her conviction for involuntary manslaughter, a Class D felony, Ind. Code § 35-42-1-4 (2013).
We affirm.
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I. Sufficiency of the Evidence
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Wahl argues that the evidence is insufficient to establish that she recklessly supervised A.D. [a 20-month-old child who died of asphyxiation after getting stuck in a poorly functioning baby gate at Wahl’s home daycare] “given her close proximity to A.D. when he went back to the gate moments after she had initially removed him from the gate.” [Record citations omitted throughout.] The State called Vicki Allen (Allen) of the Indiana Family and Social Services Administration (FSSA) to testify regarding the standards imposed on child care providers while caring for children. Allen testified that according to Ind. Admin Code 3-1.1-36.5, children shall not be left unattended and must be “within sight or sound at all times,”—that is, to be seen “without obstruction and heard without obstruction.”
Here, the unrefuted evidence presented at trial established that, on the day in question, A.D. was not within Wahl’s sight or sound at all times. …
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Lastly, the State argues that the child-to-staff ratio was beyond the required limit and that it rose to the level of reckless supervision. We note that child-to-staff ratio means “the maximum number of children permitted per direct child care provider.” Ind. Admin. § Code 3-1.1-7.1. Pursuant to Ind. Admin. Code § 3-1.1-36.5, the Wahls were allowed to have no more than six children from birth to 24 months; and at least two of the children should have been sixteen months old and walking. … Wahl argues that having one child over the number required is not a substantial deviation given her close proximity to A.D. the entire time on the day he died. We strongly disagree.
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II. Motion to Correct Error.
Next, Wahl argues that the trial court abused its discretion by denying her motion to correct error based on alleged jury misconduct. …
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The State maintains that when a defendant seeks a new trial based on jury misconduct, she must show that the misconduct was (1) gross and (2) she was probably harmed. See Griffin, 754 N.E.2d at 901. We disagree that this is the correct standard of review. Most recently, our supreme court in Ramirez v. State, 7 N.E.3d 933, 938 (Ind. 2014), took into account the confusion involved when determining jury taint and sought to clarify the existing precedents. … According to the test proponed in Ramirez, Wahl is required to show by a preponderance of the evidence that: (1) the alternate juror communicated with jurors without authorization; and (2) about the matter before the jury. We will first establish whether Wahl has met her initial two-part inquiry of prejudice.
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Here, the jury was instructed that the “alternate will be with you in the room but is not permitted in your deliberations or verdict.” According to Juror #7’s affidavit, after the jury retired to the jury room and contrary to the trial court’s instructions, the alternate began leading the jury in the discussions. After been asked to withdraw, he proceeded to test and experiment with the white metal security gate while discussions were ongoing. In addition, the alternate juror repeatedly replayed a video [at louder volume each time] which led the jurors to interrupt their discussions and watch a particular portion of the video. From the foregoing, it is clear that the alleged communication—both spoken and unspoken—constituted impermissible communication barred under Rule 606(b), and it related to a matter before the jury. Having established that Wahl met her burden pursuant to Ramirez, the burden now shifts to the State to show that the alternate juror’s out-of-court communication was harmless.
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The State maintains that it rebutted the presumption of prejudice since the evidence of the alleged misconduct amounts to “harmless childish behavior.” Specifically, the State argues that according to Juror #7 affidavit, “it appears that the alternate refrained from speaking with the other jurors once it was pointed out to him that he was not to participate in the deliberations. In addition, the State argues that all the “alternate juror allegedly did was play with properly admitted evidence during the deliberations.”
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Here, Juror #7 advised the alternate juror to cease and desist from discussions, and we presume that the other jurors were attentive of that warning. Because we find that the jury was obviously aware that the alternate juror was not meant to participate in the discussions, any transient comments that the alternate juror made at the commencement of the jury deliberations or his curiosity to experiment with the exhibits admitted into evidence, did not introduce new material into deliberations that was not already known by the jury from the trial itself. On these facts, it is plain to us that, while Wahl may have met her initial burden, the State rebutted the alleged misconduct, and without more, we cannot say that the trial court abused its discretion in denying Wahl’s motion to correct error.
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Affirmed.
Barnes, J. concurs
Bailey, J. dissents with separate opinion
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Bailey, Judge, dissenting.
I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” [Footnote omitted.] The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.
The theory of prosecution was that non-conformance with regulatory standards (one too many children or improper maintenance) is necessarily “a substantial deviation from acceptable standards of conduct” as an element of the charged crime. The State offered as an exhibit the language of Indiana Administrative Code Section 3-1.1-36.5 (setting forth the child to staff ratio and stating that children are to be supervised at all times) and asked Vicki Allen to explain or define “supervision” within the meaning of the regulatory provision. When asked “what does that mean,” she responded: “The children need to be within sight or sound at all times.”
….
In short, the State engrafted language from a regulatory scheme into the Criminal Code, such that “a substantial deviation from acceptable standards of conduct” became “a substantial deviation from child care provider standards.” This invaded the province of the jury whose duty it was to determine whether conduct was so substantial in its deviance that it amounted to criminal reckless conduct.
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In my opinion, Wahl’s conviction was not a product of constitutionally adequate proceedings and amounts to fundamental error. Accordingly, I respectfully dissent.
Appellant-Defendant, Saundra Wahl (Wahl), appeals her conviction for involuntary manslaughter, a Class D felony, Ind. Code § 35-42-1-4 (2013).
We affirm.
….
I. Sufficiency of the Evidence
….
Wahl argues that the evidence is insufficient to establish that she recklessly supervised A.D. [a 20-month-old child who died of asphyxiation after getting stuck in a poorly functioning baby gate at Wahl’s home daycare] “given her close proximity to A.D. when he went back to the gate moments after she had initially removed him from the gate.” [Record citations omitted throughout.] The State called Vicki Allen (Allen) of the Indiana Family and Social Services Administration (FSSA) to testify regarding the standards imposed on child care providers while caring for children. Allen testified that according to Ind. Admin Code 3-1.1-36.5, children shall not be left unattended and must be “within sight or sound at all times,”—that is, to be seen “without obstruction and heard without obstruction.”
Here, the unrefuted evidence presented at trial established that, on the day in question, A.D. was not within Wahl’s sight or sound at all times. …
….
Lastly, the State argues that the child-to-staff ratio was beyond the required limit and that it rose to the level of reckless supervision. We note that child-to-staff ratio means “the maximum number of children permitted per direct child care provider.” Ind. Admin. § Code 3-1.1-7.1. Pursuant to Ind. Admin. Code § 3-1.1-36.5, the Wahls were allowed to have no more than six children from birth to 24 months; and at least two of the children should have been sixteen months old and walking. … Wahl argues that having one child over the number required is not a substantial deviation given her close proximity to A.D. the entire time on the day he died. We strongly disagree.
….
II. Motion to Correct Error.
Next, Wahl argues that the trial court abused its discretion by denying her motion to correct error based on alleged jury misconduct. …
….
The State maintains that when a defendant seeks a new trial based on jury misconduct, she must show that the misconduct was (1) gross and (2) she was probably harmed. See Griffin, 754 N.E.2d at 901. We disagree that this is the correct standard of review. Most recently, our supreme court in Ramirez v. State, 7 N.E.3d 933, 938 (Ind. 2014), took into account the confusion involved when determining jury taint and sought to clarify the existing precedents. … According to the test proponed in Ramirez, Wahl is required to show by a preponderance of the evidence that: (1) the alternate juror communicated with jurors without authorization; and (2) about the matter before the jury. We will first establish whether Wahl has met her initial two-part inquiry of prejudice.
….
Here, the jury was instructed that the “alternate will be with you in the room but is not permitted in your deliberations or verdict.” According to Juror #7’s affidavit, after the jury retired to the jury room and contrary to the trial court’s instructions, the alternate began leading the jury in the discussions. After been asked to withdraw, he proceeded to test and experiment with the white metal security gate while discussions were ongoing. In addition, the alternate juror repeatedly replayed a video [at louder volume each time] which led the jurors to interrupt their discussions and watch a particular portion of the video. From the foregoing, it is clear that the alleged communication—both spoken and unspoken—constituted impermissible communication barred under Rule 606(b), and it related to a matter before the jury. Having established that Wahl met her burden pursuant to Ramirez, the burden now shifts to the State to show that the alternate juror’s out-of-court communication was harmless.
….
The State maintains that it rebutted the presumption of prejudice since the evidence of the alleged misconduct amounts to “harmless childish behavior.” Specifically, the State argues that according to Juror #7 affidavit, “it appears that the alternate refrained from speaking with the other jurors once it was pointed out to him that he was not to participate in the deliberations. In addition, the State argues that all the “alternate juror allegedly did was play with properly admitted evidence during the deliberations.”
….
Here, Juror #7 advised the alternate juror to cease and desist from discussions, and we presume that the other jurors were attentive of that warning. Because we find that the jury was obviously aware that the alternate juror was not meant to participate in the discussions, any transient comments that the alternate juror made at the commencement of the jury deliberations or his curiosity to experiment with the exhibits admitted into evidence, did not introduce new material into deliberations that was not already known by the jury from the trial itself. On these facts, it is plain to us that, while Wahl may have met her initial burden, the State rebutted the alleged misconduct, and without more, we cannot say that the trial court abused its discretion in denying Wahl’s motion to correct error.
….
Affirmed.
Barnes, J. concurs
Bailey, J. dissents with separate opinion
….
Bailey, Judge, dissenting.
I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” [Footnote omitted.] The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.
The theory of prosecution was that non-conformance with regulatory standards (one too many children or improper maintenance) is necessarily “a substantial deviation from acceptable standards of conduct” as an element of the charged crime. The State offered as an exhibit the language of Indiana Administrative Code Section 3-1.1-36.5 (setting forth the child to staff ratio and stating that children are to be supervised at all times) and asked Vicki Allen to explain or define “supervision” within the meaning of the regulatory provision. When asked “what does that mean,” she responded: “The children need to be within sight or sound at all times.”
….
In short, the State engrafted language from a regulatory scheme into the Criminal Code, such that “a substantial deviation from acceptable standards of conduct” became “a substantial deviation from child care provider standards.” This invaded the province of the jury whose duty it was to determine whether conduct was so substantial in its deviance that it amounted to criminal reckless conduct.
….
In my opinion, Wahl’s conviction was not a product of constitutionally adequate proceedings and amounts to fundamental error. Accordingly, I respectfully dissent.