Opinion
23A-CR-793
06-19-2024
Burke W. Baughman, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Susan D. Rayl Harshman Ponist Smith & Rayl Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Appeal from the Allen Superior Court The Honorable Steven O. Godfrey, Judge Trial Court Cause No. 02D04-2001-F2-8
ATTORNEY FOR APPELLANT Susan D. Rayl Harshman Ponist Smith & Rayl Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Following a jury trial, the Allen Superior Court convicted Burke Baughman, Jr., of Level 2 felony dealing in a narcotic drug and adjudicated him a habitual offender. Baughman appeals his conviction and raises seven issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion when it admitted into evidence recordings of jail phone calls;
II. Whether the trial court committed fundamental error when it allowed testimony that Baughman had an active arrest warrant on the date he committed his offense;
III. Whether the trial court abused its discretion when it admitted into evidence text messages indicative of drug dealing that were sent and received during the two weeks preceding his offense;
IV. Whether the trial court erred when it failed to properly admonish the jury before lunch breaks and at the end of the trial day; and,
V. Whether Baughman is entitled to a new trial because of the cumulative effect of the alleged errors.
[¶2] Concluding that Baughman has not established any reversible error, we affirm his conviction and habitual offender adjudication.
Facts and Procedural History
[¶3] On January 28, 2020, Fort Wayne Police Officer Nicholas Lichtsinn was conducting surveillance at 1906 St. Mary's Avenue. Officer Lichtsinn had a warrant for Baughman's arrest and believed he was located at that residence. The officer observed two people leave the house, enter a vehicle, and drive away. He followed the vehicle, and after he observed several traffic infractions, he initiated a traffic stop.
[¶4] During the stop, Jamie Taylor, the driver, told Officer Lichtsinn that 1906 St. Mary's was her residence. She confirmed that Baughman was at the house and consented to the officer entering the house to arrest Baughman.
[¶5] As Officer Lichtsinn entered the home, he saw a man run out of the first-floor bedroom and up a flight of stairs. After law enforcement officers secured the first floor of the residence, they proceeded up the stairs. They found Baughman hiding under a bed and had to pull him out from under the bed. Officer Lichtsinn arrested Baughman and searched him. During the search, the officer found a knife and $1,380.00 in cash. Tr. Vol. 3, p. 107; Vol. 4, p. 233. Baughman asked the officers to retrieve his coat and shoes before transporting him to the jail and told the officers those items were in the first-floor bedroom.
[¶6] Thereafter, Taylor consented to the search of her residence for narcotics. In the first-floor bedroom, law enforcement officers found a jar containing marijuana, 1.89 grams of fentanyl in a plastic baggie, a line of narcotic on a book that appeared as though someone was planning to snort it, a cell phone, a wallet with Baughman's identification, a burning cigarette, and a Crown Royal bag. Inside that bag, there were two plastic baggies containing fentanyl. The fentanyl in one baggie weighed 45.49 grams and the fentanyl in the other baggie weighed approximately 11 grams. Baughman admitted that the 1.89 grams of fentanyl belonged to him. The officers also found a second cell phone in the bedroom.
[¶7] Both cell phones contained text messages and photographs that indicated that Baughman owned and/or used both phones. In the two weeks preceding his January 28 arrest, Baughman sent and received numerous text messages with other individuals arranging the purchase of illegal drugs. In one message, Baughman stated he was no longer selling cars but was a "full time drug dealer again." Ex. Vol., State's Ex. 59.
[¶8] On January 31, the State charged Baughman with Level 2 felony dealing in a narcotic drug and Class B misdemeanor possession of marijuana. The State later dismissed the marijuana charge, but added an allegation that Baughman was a habitual offender.
[¶9] Baughman's jury trial commenced on February 7, 2023. During trial and over Baughman's objection, the trial court admitted recordings of phone calls Baughman made to various individuals from the jail and text messages from Baughman's two cell phones. Baughman argued that the content of the calls and messages contained inadmissible Rule 404(b) evidence. Baughman also argued that the text messages, which were sent or received during the two weeks preceding his arrest, were irrelevant to whether he possessed the fentanyl found on January 28, 2020.
[¶10] The jury found Baughman guilty of the Level 2 felony offense. Thereafter, in a bifurcated proceeding, the jury determined that Baughman was a habitual offender. The trial court sentenced Baughman to twenty years for the Level 2 felony conviction and enhanced that sentence by an additional twenty years for the habitual offender adjudication.
[¶11] Baughman now appeals. Additional facts will be provided as necessary.
Alleged Errors in the Admission of Evidence
[¶12] "[T]he decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal." Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a party's substantial rights. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). Moreover, if the trial court errs when it admits evidence, our court must determine whether that error is harmless. Specifically,
[w]hen an appellate court must determine whether a nonconstitutional error is harmless, [Indiana Appellate] Rule 66(A)'s "probable impact test" controls. Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below. Importantly, this is not a review for the sufficiency of the remaining evidence; it is a review of what was presented to the trier of fact compared to what should have been presented. And when conducting that review, we consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case. Ultimately, the error's probable impact is sufficiently minor when-considering the entire record-our confidence in the outcome is not undermined.Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (citations omitted).
[¶13] Baughman argues that certain statements in the recorded jail calls, testimony that Baughman had an active arrest warrant on January 28, 2020, and his text messages were inadmissible pursuant to Indiana Rule of Evidence 404(b) because they contained evidence of prior bad acts. Rule 404(b) provides that "[e]vidence 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." Evid. R. 404(b)(1). Such evidence may be admitted, however, "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Evid. R. 404(b)(2).
[¶14] Evidence Rule 404(b) is designed to prevent the jury from making the "forbidden inference" that prior wrongful conduct suggests present guilt. Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013). Evidence Rule 404(b) seeks to "prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes." Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003) (internal quotation omitted).
[¶15] "The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the forbidden inference of demonstrating the defendant's propensity to commit the charged crime." Laird v. State, 103 N.E.3d 1171, 1177 (Ind.Ct.App. 2018) (citing Rogers v. State, 897 N.E.2d 955, 960 (Ind.Ct.App. 2008)), trans. denied. If the evidence is introduced for another purpose-such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident-the trial court:
First . . . must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act. Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. And third, the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.D.R.C. v. State, 908 N.E.2d 215, 223 (Ind. 2009) (citations and internal quotations omitted). See also Dumes v. State, 718 N.E.2d 1171, 1175 (Ind.Ct.App. 1999) (observing that "[o]ur analysis of admissibility under Rule 404(b) necessarily incorporates the relevancy test of Rule 401 and the balancing test of Rule 403").
[¶16] We now turn to Baughman's specific challenges to the evidence admitted at trial.
I. Jail Phone Call Recordings
[¶17] Over Baughman's objection, the trial court admitted recordings of phone calls Baughman made to various individuals while he was in jail. See Ex. Vol., State's Exs. 28, 29, 30, 31, 32, &33; Tr. Vol. 4, p. 166. In his brief, Baughman addresses each exhibit separately and for the sake of clarity, we will do the same.
A. Exhibit 28
[¶18] On February 4, 2020, Baughman made a thirteen-minute phone call to "Amber." Amber was not a witness at trial, but the State sought to admit the recording because Baughman wanted Amber to "keep Jamie [Taylor] in line." Appellant's Br. at 17. Baughman directs our attention to several statements in the call that he claims should have been redacted. Id. at 17-18. These include Baughman's statements about whether he believed statements made by Taylor, what other individuals had heard about his case, his understanding of the law, Amber's statement that she was "trying to get clean," and how much money his father had paid to hire a lawyer. Id. While we agree with Baughman that these statements were not relevant to whether Baughman was a drug dealer, the statements are also not evidence that Baughman committed prior bad acts.
B. Exhibit 29
[¶19] On March 1, 2020, Baughman called his mother. The State sought to admit this call to prove that Baughman had been staying in Taylor's house. Baughman concedes that certain portions of the phone call were relevant to the State's case. Appellant's Br. at 18. However, he argues that certain statements in the phone call were irrelevant and/or prejudicial including their discussion of another man who was at Taylor's residence, his use of the "N" word, and using profanity to refer to Taylor. Baughman's profane language, which was tangential to the content of the call, is not evidence of bad acts that must be excluded under Rule 404(b).
C. Exhibit 30
[¶20] Baughman called Taylor on March 3, 2020. Again, Baughman concedes that there were admissible statements made during the phone call but that other statements should have been redacted. Appellant's Br. at 19-20. These include Baughman's discussion with Taylor that the police officers "played" her, why Taylor signed the consent to search her home, Taylor crying during the call, and Baughman's statement to Taylor that she "fu**ed him." Baughman also told Taylor to quit lying to him and accused her of "ratting" him out. And Baughman shared content of conversations he had with his lawyer. Baughman claims that these statements were inflammatory and prejudicial. These statements directly relate to the offense charged and the police investigation, and therefore, they are relevant and not evidence of prior bad acts.
D. Exhibit 31
[¶21] Exhibit 31 is a recording of a second phone call between Baughman and Taylor. During the call, Baughman and Taylor discussed the case and why Taylor failed to tell the officers that "the shit" belonged to another man who was also at her house on January 28, 2020. Baughman claims that certain statements in the call were "more prejudicial than probative." Appellant's Br. at 21. These include their discussion of whether the police officers tricked Taylor into signing the consent to search, Taylor's statements to an officer about whether Baughman was a drug dealer, Baughman stating that Taylor put him in jail, and whether Taylor understood the letter he sent her. Once again, these statements directly relate to the offense charged and the police investigation, and therefore, they are relevant and not evidence of prior bad acts.
E. Exhibit 32
[¶22] This recording is the third call between Baughman and Taylor. In this call, Baughman asked Taylor to testify that she did not sign the consent to search her home and that he never sold drugs. Baughman claims that the call contains many "inadmissible" statements. Appellant's Br. at 22. These include Baughman's statements that he loves Taylor and will forgive her someday, telling her which bills to pay and to pay his lawyer, and Baughman's use of the "N" word. We agree with Baughman that these statements are not relevant to whether he committed the offense of dealing in narcotics, but they are also not evidence of prior bad acts.
F. Exhibit 33
[¶23] This recording is the fourth call between Baughman and Taylor. Baughman expressed anger at Taylor for "putting" him in jail and signing the consent to search her home. Baughman argues that two statements in the call should have been redacted: Baughman used profane language while yelling at Taylor and his statement to Taylor directing her to kill herself. Appellant's Br. at 24. We agree that these statements are not relevant but they are also not evidence of prior bad acts.
G. Summary
[¶24] Baughman's remaining arguments assume our court's agreement with his claim that the phone calls contained evidence of prior bad acts. As noted above, we do not agree. And contrary to Baughman's argument, his use of profanity is not inadmissible Rule 404(b) evidence and he has not presented cogent argument that would persuade us that admitting his profane statements prejudiced him.
Because we conclude that the challenged statements in the jail calls are not evidence of prior bad acts, we do not need to separately address Baughman's argument that the State committed misconduct when it informed the court that there was no 404(b) evidence in the recordings. Likewise, we need not address Baughman's claim that the trial court committed fundamental error when it failed to listen to the recordings in their entirety before admitting them into evidence. Moreover, the parties engaged in significant discussion of the content of the recordings during their argument to the court concerning their admissibility. See Tr. Vol. 4, pp. 122-136.
Baughman attempts to support his argument concerning the prejudicial nature of Baughman's use of profanity by citing to United States v. Hazelwood, 979 F.3d 398 (6th Cir. 2020). In that case, the defendant was convicted of conspiracy to commit wire and mail fraud. The trial court admitted undercover audio recordings in which a defendant, the company's president, used deeply offensive racist and misogynistic language. Id. at 402. The recordings were over eight minutes in length during which the defendant and his companions made "absurdly offensive remarks about African Americans and women and laugh[ed] along to a wrenchingly racist and misogynistic tune that they called the 'greasy n*****r song." Id. at 413. The trial court admitted the recordings under the theory that "if the defendant was reckless enough to use language that could risk public outrage against the company, he was a 'bad businessman,' and as a bad businessman, he was also reckless enough to commit fraud." Id. at 402. Notably, the recordings were admitted solely for the purpose of rebuttal evidence as to Hazelwood's "alleged character for sound business judgment." Id. at 407. The Sixth Circuit reversed the defendant's conviction after concluding that the district court abused its discretion when it admitted the recordings because they were not relevant to determining the defendant's guilt or probative of any issue in the case. Id. at 409, 411. Moreover, the recordings made "it more likely that the jury would convict Hazelwood because of his character." Id. at 411. Finally, the court concluded that the "extraordinary risk of prejudice posed by the offensive recordings needs little explanation." Id. at 412. The facts of this case are readily distinguishable from those in Hazelwood. The jail phone calls were relevant to the issues presented at trial, and Baughman's use of profanity and the "n" word, while despicable, was not the reason the calls were admitted. Moreover, his use of that word was not as pervasive as the defendant's use in Hazelwood. In addition, the State did not reference Baughman's profane language at any time before the jury. We agree that the State should have redacted the offensive language to the extent possible, but Baughman has not established reversible error in the trial court's decision to admit the jail phone calls.
[¶25] To the extent that certain statements in the phone calls were irrelevant, the probable impact of the erroneously admitted statements does not undermine our confidence in the outcome of the proceeding. The significant factual issue at trial was whether Baughman constructively possessed the fentanyl found in the Crown Royal bag in the first-floor bedroom. Baughman does not argue how admission of the irrelevant statements in the calls impacted the jury's conclusion that he possessed the narcotics at issue.
II. Arrest Warrant Evidence
[¶26] Two law enforcement officers testified that on January 28, 2020, the officers were conducting surveillance on Taylor's home because they believed Baughman, who had an active warrant for his arrest, was staying there. Baughman failed to object to this testimony but argues that admission of this evidence constitutes fundamental error. When a defendant fails to object to the admission of evidence, he waives review of the issue on appeal unless he can demonstrate fundamental error. See Halliburton, 1 N.E.3d at 678. The fundamental error exception is
extremely narrow[] and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is available only in egregious circumstances.Id. (internal citations and quotations omitted).
[¶27] Baughman claims that the officers' testimony and the State's reference in the arrest warrant in its opening and closing arguments made a fair trial impossible. Officer Lichtsinn testified that he had information that Baughman was located at the residence at 1906 St. Mary's Avenue and he was conducting surveillance because there was an active warrant for Baughman's arrest. Tr. Vol. 3, p. 101. The officer made reference to the warrant a second time when he explained that Taylor confirmed that Baughman was at her home and she consented to the officer entering her home so that he could arrest Baughman. Id. at 102. During cross-examination, the officer explained that he needed Taylor's consent to enter her home so he could "take the person with the warrant out of her house." Id. at 124-25. In addition, Officer Joel Jackson testified that Baughman stated to him "you had the bench warrant, you got me, and so why are [the officers] still in the house?" Id. at 234.
The other references to a warrant that Baughman cites in his brief include officer testimony about procedures they generally use when serving a warrant or the officers' reason for being at Taylor's residence, i.e. to help Officer Lichtsinn serve a warrant. See e.g. Tr. Vol. 3, pp. 120, 136, 148, 164, 173, 224.
[¶28] In his closing argument, Baughman argued that he ran from the police when the officers entered Taylor's home because there was a warrant for his arrest and he did not run because he was aware that there was fentanyl in the first-floor bedroom. Tr. Vol. 5, p. 74. For this reason, Baughman's failure to object to evidence that the officer had a warrant for his arrest appears to have been strategic. In addition, and considering the evidence as a whole, Baughman has not presented any argument that would lead us to conclude that three references to his active arrest warrant made a fair trial impossible.
III. Text Messages
[¶29] We now address Baughman's claim that the trial court abused its discretion when it admitted text messages that were exchanged between Baughman and various individuals during the two weeks preceding his January 28 arrest. In the messages, Baughman discussed obtaining "boi" or fentanyl for various people. Ex. Vol., Exs. 55-62. In a January 14 text message, in response to a message that asked whether he was still selling cars, Baughman stated that he was a "full time drug dealer again." Ex. Vol., Ex. 59, p. 64.
[¶30] Baughman argues that the dealing described in the text messages did not occur at the same time or under the same circumstances as the charged offense, and therefore, the evidence was inadmissible under Rule 404(b). In response, the State argues that the text messages were admissible to prove Baughman's intent to possess and deal the fentanyl found in the first-floor bedroom after Baughman claimed at trial that he did not know the Crown Royal bag contained fentanyl, the fentanyl did not belong to him, and there were other people in the home it belonged to.
[¶31] Because Baughman did not have exclusive possession of Taylor's home, the State had to prove that he constructively possessed the fentanyl at issue. To prove that a defendant constructively possessed contraband, the State must show that "the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs." See Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). And, as in this case,
[w]hen a defendant's possession of the premises on which drugs are found is not exclusive, then the inference of intent to maintain dominion and control over the drugs "must be supported by additional circumstances pointing to the defendant's knowledge of the nature of the controlled substances and their presence."Id. (quoting Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997)).
[¶32] In his opening statement, Baughman argued that there were many people who did drugs in Taylor's house and had "free rein of the house." Tr. Vol. 3, pp. 9394. He argued the State would not present any evidence that any person saw Baughman possess the Crown Royal bag, in which the officers found over 45 grams of fentanyl. Id. Baughman claimed the evidence would show that the Crown Royal bag was "basically hidden" and "you wouldn't absolutely notice it." Id. He also argued that the "evidence will show multiple phones in the [first-floor] room, multiple persons' belongings, clothes, different things." Id. By making these arguments, Baughman put his knowledge of the fentanyl at issue, and therefore, evidence of his prior bad acts was admissible under Rule 404(b)(2). See Baker v. State, 997 N.E.2d 67, 71 (Ind.Ct.App. 2013). In addition, the text messages describe Baughman's dealing activity and his attempts to obtain fentanyl in the days leading up to his January 28, 2020, arrest when he was found with over 45 grams of fentanyl. For these reasons, we agree with the State that the messages were not admitted for the purpose of establishing a forbidden inference of Baughman's propensity to commit the charged crime.
[¶33] Next, we consider Baughman's argument that the text messages should not have been admitted because of their prejudicial impact. We observe that "all relevant evidence is 'inherently prejudicial' in a criminal prosecution, so the inquiry boils down to a balance of probative value against the likely unfair prejudicial impact the evidence may have on the jury." Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002). To determine the likely unfair prejudicial impact, courts consider the danger that the jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury. Id. "'Unfair prejudice . . . looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis.'" Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d at 224).
[¶34] The text messages were probative of Baughman's knowledge of the fentanyl in the first-floor bedroom and his intent and plan to deal. Moreover, the jury was presented with additional evidence that the weight of the fentanyl found in the bedroom was consistent with dealing, not personal use. Baughman's personal belongings were found in the first-floor bedroom and his wallet was next to the Crown Royal bag containing over 45 grams of fentanyl. Baughman admitted that the baggie containing 1.89 grams of fentanyl found in the first-floor bedroom belonged to him. Baughman also fled from the first-floor bedroom when the officers entered Taylor's house, attempted to hide from them, and he had almost $1,400 in cash in his pocket. Given the overwhelming evidence that the fentanyl in the Crown Royal bag belonged to Baughman, we cannot conclude that the text messages likely had an unfair prejudicial impact on the jury. See Echeverria v. State, 146 N.E.3d 943, 949 (Ind.Ct.App. 2020) (drug ledgers containing names, dates, and dollar amounts of prior drug transactions were admissible due to their "substantial probative value for purposes of establishing intent, identity, or even preparation, and while they might have some prejudicial effect, it does not outweigh their probative value"), trans. denied.
[¶35] Moreover, even if we were to conclude that the trial court abused its discretion in admitting the messages, the error would be harmless. As we noted above, the weight of the fentanyl itself is sufficient evidence of intent to deal. See Ind. Code § 35-48-4-1(b)(2); see also Tr. Vol. 3, pp. 138-39; Vol. 4, p. 228, 231-32. In addition, the State presented substantial evidence to establish that Baughman constructively possessed the fentanyl discovered in the first-floor bedroom of Taylor's home. After considering the totality of the record, we conclude that the State presented substantial evidence of Baughman's guilt independent of the text messages, and any error in the admission of the text messages would not have affected Baughman's substantial rights.
We observe that the January 14, 2020, text message wherein Baughman admitted that he was a "full time drug dealer again" is more problematic. Ex. 59, p. 64. The State drew the jury's attention to this text during its closing argument. Vol. 5, p. 56. But the evidence of Baughman's guilt was overwhelming. He admitted that the baggie containing 1.89 grams of fentanyl was his. And his wallet was next to the Crown Royal bag containing over 45 grams of fentanyl. He tried to hide from the police when they entered the home, and he had $1,380 in cash in his pocket. Considering these facts in addition to those discussed above, we conclude that substantial independent evidence in the record demonstrates that Baughman would have been convicted irrespective of the admission or exclusion of the text message.
Jury Admonishment
[¶36] Next, Baughman argues that the jury was not properly admonished before the lunch break on the first day of trial and before adjourning for the day on the first and second days of trial. Pursuant to Indiana Code section 35-37-2-4(a), the trial court is required to admonish the jury during preliminary instructions, before separating for meals, and the end of the trial day. See Cruz Rivera v. State, 127 N.E.3d 1256, 1258-59 (Ind.Ct.App. 2019), trans. denied.
[¶37] Here, after the jury was selected but before the jurors were sworn, they had a lunch break. The trial court did not admonish the jury before they left the courtroom. The trial court gave an admonishment consistent with Jury Rule 20after the jury was sworn during the preliminary instructions. The trial court did not give any admonishments to the jury on the second day of trial and failed to admonish the jury when they adjourned for lunch on the third day.
Our courts have previously observed the content of the admonishment required by Section 35-37-2-4(a) conflicts with Indiana Jury Rule 20(a)(8). See Cruz Rivera v. State, 127 N.E.3d 1256, 1258 n.1 (Ind.Ct.App. 2019), trans. denied; see also Cruz Rivera v. State, 134 N.E.3d 386 (Ind. 2019) (David, J. dissenting from denial of transfer) (mem).
[¶38] Failure to admonish the jury as required by Indiana Code section 35-37-2-4(a) does not "lead to automatic reversal." Cardosi v. State, 128 N.E.3d 1277, 1284 85 (Ind. 2019). "[A] defendant must show he was 'harmed by failure of the court to instruct or admonish the jury as to conduct during recess.'" Id. at 1285 (quoting Brown v. State, 245 Ind. 604, 608, 201 N.E.2d 281, 283 (1964)). In addition, Baughman failed to object to the lack of admonishment. Therefore, he has waived the issue for appeal. See id. (citing Lake v. State, 565 N.E.2d 332, 335 (Ind. 1991)). Baughman acknowledges waiver but argues fundamental error.
[¶39] As we observed above, the fundamental error exception is "extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Haliburton, 1 N.E.3d at 678. Baughman speculates that the jurors could have researched Baughman on the internet after they were selected but before they were sworn in on the first day of trial. And he observes that the jurors could have found news articles describing Baughman's prior criminal activity.
[¶40] Baughman does not cite to any evidence in the record that the jurors independently researched Baughman after they were selected but before they were sworn in or at any other time during the trial. And Baughman's speculative claims do not support his claim of fundamental error. For this reason, although we agree that the trial court erred when it failed to provide the required admonishments, the error did not deny Baughman fundamental due process.
Cumulative Error
[¶41] Finally, Baughman argues that, even if the alleged errors standing alone do not warrant reversal, the cumulative effect of those errors does warrant reversal.
Our Supreme Court has previously observed:
This court has been willing to assume "for the sake of argument, that under some circumstances the cumulative effect of trial errors may warrant reversal even if each might be deemed harmless in isolation," but not where it has been "clear in light of the evidence of guilt that no prejudice resulted from any of the erroneous rulings, individually or cumulatively."Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (citing Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001)). Baughman has presented us with few claims of error that have merit, i.e. the lack of admonishment to the jury and possible harmless error in the admission of his text messages. However, Baughman has not established that he suffered prejudice as a result of those errors. Given our resolution of the issues herein, Baughman's claim of cumulative error fails.
Conclusion
[¶42] Baughman has not persuaded us that he is entitled to relief on appeal, and we affirm his Level 2 felony dealing in a narcotic drug conviction and habitual offender adjudication.
[¶43] Affirmed.
Riley, J., and Brown, J., concur.