TUTROW v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] After he physically abused his girlfriend and prevented her from leaving their vehicle during a fight, the State charged Michael Tutrow with criminal confinement and domestic battery. While the jury was deliberating at trial, it sent a note to the court indicating it was at an impasse on the criminal confinement charge and asked for instructions on how to proceed. The trial court and counsel discussed the matter on the record. Defense counsel waived Tutrow's presence at the discussion and agreed with the court that it should instruct the jury to keep deliberating. The court did so, and the jury later returned a guilty verdict on both charges. Tutrow appeals his convictions, asserting it was fundamental error for the court, in his absence, to instruct the jury to continue deliberating. We affirm.

Facts and Procedural History

[2] In May 2021, Tutrow and his girlfriend, Cori Baugh, got into a fight while they were visiting Tutrow's mother. During their drive home, the fight continued and then became physical. At one point Baugh got out of the car, but Tutrow “chased [her], grabbed [her], slammed [her] down to the ground[,]” and dragged her back to the car. Transcript Vol. 2 at 119. As he continued driving, they resumed fighting. When they were stopped at a red light, Baugh tried to get out of the car again. When she was halfway out the door, Tutrow grabbed her by the hair and “floored it” through the red light. Id. at 123. Baugh was “dragged across the intersection” and down the road before Tutrow finally released her. Id. She ran toward a nearby gas station, but Tutrow caught up to her, “slammed [her] down to the ground[,] and ․ tr[ied] to drag [her] back to the car” again. Id. at 124. Baugh eventually freed herself and went into the gas station and asked an employee to call 911.

[3] The State charged Tutrow with Level 5 felony criminal confinement and Level 6 felony domestic battery. A two-day jury trial was held in May 2022. After the jury had deliberated for about two hours, it sent a note to the court stating,

We have deliberated on all elements of both Counts I [and] II. We have reached a point of unanimous decision on Count II. We are 11-1 on Count I (criminal confinement). The one holdout does not want to change. We have reached a point where further deliberation will not change. How shall we proceed?

Appellant's Appendix Vol. 2 at 126.

[4] The court notified both attorneys about the note, and counsel returned to the courtroom to put their discussion on the record. But before addressing the jury's note, the court asked defense counsel if he wanted the court to retrieve Tutrow.¹ Counsel declined and expressly waived Tutrow's presence at the discussion. See Tr. Vol. 3 at 34-35 (“[O]n his behalf, I'm waiving his presence in this hearing.”). Then the court read the jury's note on the record and asked how counsel believed it should proceed. The trial court expressed that its “inclination [was] to tell them to keep trying ․” Id. at 35. Both parties agreed with the court. Defense counsel specifically said, “Yeah, I think that's standard. On the first time they come back and say they're hung. Or maybe phrase it nicely․ [W]e would like you to try a little longer, something like that.” Id. at 35-36. As the court wrote its response, it asked defense counsel to repeat its proposed verbiage. Counsel proposed, “We appreciate your deliberations. If you could try a little longer. Something like that ․” Id. at 36. The court wrote its response directly on the jury's note. The response stated in full: “We appreciate your deliberations. At this point, I would like you to keep trying a little longer. Thank you.” Appellant's App. Vol. 2 at 126. Tutrow was absent for the entire six-minute discussion.

[5] Almost an hour later, the jury returned a verdict of guilty on both counts. Tutrow was sentenced to an aggregate term of five years executed in the Department of Correction. He appeals.

Discussion and Decision

[6] Tutrow appeals his conviction, arguing the trial court committed fundamental error when it instructed the jury to keep deliberating. Specifically, he claims it was fundamental error because:

(1) the court's response constituted ex parte communication and threatened the jury's impartiality;

(2) he was entitled to be present at the discussion pursuant to the Sixth Amendment of the U.S. Constitution, Article 1, Section 13 of the Indiana Constitution, and Indiana Jury Rule 28; and

(3) the trial court failed to sign its response, possibly leaving the jury confused as to who gave the instruction.

[7] When an appellant fails to object to the alleged error below, he may only prevail on appeal if we find the trial court committed fundamental error. Strack v. State, 186 N.E.3d 99, 103 (Ind. 2022) (“Fundamental error is an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal.” (quoting Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019))). Tutrow does not dispute that he failed to object to the court's instruction and concedes that any error made by the court is only reviewable for fundamental error. Despite his claim of fundamental error, we agree with the State that these circumstances instead constitute invited error.

1. Invited Error

[8] “The invited-error doctrine generally precludes a party from obtaining appellate relief for his own errors, even if those errors were fundamental.” Miller v. State, 188 N.E.3d 871, 874-75 (Ind. 2022). Invited errors are “part of a deliberate, ‘well-informed’ trial strategy.” Id. at 875 (quoting Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019)). This doctrine precludes parties “from taking advantage of an error that he ․ commits, invites, or which is the natural consequence of his ․ own neglect or misconduct.” Bush v. State, 208 N.E.3d 605, 610-11 (Ind. Ct. App. 2023) (citing Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018)), trans. denied. While “fundamental error gives us leeway to mitigate the consequences of counsel's oversights, ․ invited error precludes relief from counsel's strategic decisions gone awry.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014), reh'g denied, cert. denied. This is true even for constitutional errors. Id. at 977 (“[E]ven constitutional errors may be invited.”).

[9] Any error in the court's decision to proceed in Tutrow's absence and instruct the jury to continue deliberating was clearly invited by Tutrow. First, defense counsel expressly waived his presence at the hearing. And while Tutrow claims his attorney “did not have a right to deny [his] right to be present” at this discussion, he offers no authority to support that claim. See Keener v. State, 267 N.E.3d 1137, 1143 (Ind. Ct. App. 2025) (“[I]f a defendant is represented by counsel, [he] ‘speaks to the court through counsel.’ ” (quoting Anderson v. State, 160 N.E.3d 1102 (Ind. 2021) (mem.)), trans. denied. Second, not only did defense counsel fail to object to the court's instructions to the jury, but he also confirmed that an instruction to keep deliberating was “standard” and proposed “nice[ ]” language for the response. Tr. Vol. 3 at 36. The court wrote, almost verbatim, what defense counsel suggested. The defense's affirmative participation in crafting the court's response to the jury's question demonstrates that, even if the court otherwise erred by proceeding without Tutrow being present or providing the jury with the agreed-upon response, any such error was invited by him. His argument that the court's instruction was erroneous is therefore not subject to appellate review. See Bush, 208 N.E.3d at 611 (concluding that appellant's invited error “is not subject to appellate review”).

2. Fundamental Error

[10] Invited error notwithstanding, Tutrow has not shown that the trial court committed fundamental error. An error is fundamental if it “makes a fair trial impossible or constitutes clearly blatant violations of basic elementary principles of due process presenting an undeniable and substantial potential for harm.” Strack, 186 N.E.3d at 103 (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). This is a heavy burden that rests with Tutrow on appeal. Id.

2.1. Ex parte communication and jury impartiality

[11] Tutrow first argues that the trial court engaged in improper ex parte communications with the jury by responding to its note in his absence. See Brewer v. State, 605 N.E.2d 181, 184 (Ind. 1993) (our Supreme Court noting it has held “that it is error for communications between judge and jury to occur in the absence of the defendant”), reh'g denied. A court's response to written communications from the jury implicates two protections, one under the common law and one pursuant to Indiana Code section 34-36-1-6. Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005), trans. denied. Tutrow's argument focuses solely on the common law protection. Under the common law, when a deliberating jury seeks guidance from the court on any matter, “the proper procedure is for the judge to notify the parties so they may be present in court and informed of the court's proposed response to the jury before the judge ever communicates with the jury.’ ” Minor v. State, 252 N.E.3d 979, 985 (Ind. Ct. App. 2025) (quoting Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998)), trans. denied. We are not convinced the trial court failed to follow this very procedure. It received the jury's note, notified the State and defense counsel, initiated a discussion with both attorneys on the record, informed the parties of its proposed response, and heard arguments from both sides before it shared the response with the jurors. Cf. Tesla, Inc. v. Norris, 274 N.E.3d 956, 979-80 (Ind. Ct. App. 2025) (finding the court engaged in ex parte communication when it “had a conversation with the jury ․ without the parties’ counsel present”) (emphasis added). And as we previously stated, Tutrow offers no authority indicating that the common law protection against ex parte communications between the judge and the jury prohibited defense counsel from waiving his presence at the hearing. Thus, Tutrow has failed to show that what occurred here constituted improper ex parte communication with the jury.

[12] Even if these circumstances constituted an ex parte communication, it is not per se grounds for reversal. Marsillett v. State, 495 N.E.2d 699, 709 (Ind. 1986). If the court fails to follow the appropriate procedure, it creates a rebuttable presumption of prejudice to the defendant. Id. at 988. If that presumption is rebutted, the error is deemed harmless (and thus, not fundamental). Id. Whether the communication was harmless turns on “ ‘the nature of the communication to the jury and the effect it might have had upon a fair determination.’ ” Id. (quoting Henri v. Curto, 908 N.E.2d 196, 201 (Ind. 2009)). A significant factor in determining the impact of the court's communication on the jury “is whether or not the court's response ․ contained any new information regarding the facts or law of the case.” Id. (quoting Henri, 908 N.E.2d at 201). Critically, we will affirm “unless harm or prejudice resulted from [the ex parte] communication.” Lott v. State, 690 N.E.2d 204, 210 (Ind. 1997).

[13] The record shows the trial court's communication here was harmless. It simply instructed the jury to deliberate a little longer—there was no new factual or legally significant information relayed to the jury and counsel was present and actively involved in crafting the response. See Minor, 252 N.E.3d at 988 (finding no reversible error where the court told the jury to keep deliberating without contacting counsel or the defendant because “the court's response did not contain any new information regarding the facts or law of the case”). And Tutrow's argument that the court's note threatened the jury's impartiality is not supported by the record. The court's response, adopting defense counsel's own words, was minimal and general. This was the jury's first and only communication indicating it was at an impasse after only deliberating for two hours, and defense counsel agreed at the proceeding that such instruction was “standard” the first time a jury informs the court it's deadlocked. Tr. Vol. 3 at 35. Moreover, one of the court's final instructions specifically told the jurors that they “should not yield [their] individual judgment to [their] fellow jurors just so [they] can return a verdict.” Appellant's App. Vol. 2 at 101. See Lockridge v. State, No. 22A-CR-1381, at *3 (Ind. Ct. App. Jan. 20, 2023) (in light of a similar instruction given to the jury, this Court could not “say the trial court's simple instruction to continue deliberating was coercive or presented the potential for substantial harm”); see also Henri, 908 N.E.2d at 202 (holding that, in light of a similar instruction, the bailiff's alleged communication with the jury to keep deliberating until it reached a unanimous verdict did not constitute coercion or an unfair trial). Nothing about the court's response or the surrounding circumstances reveal that the jury was pressured or coerced to abandon its impartiality and come to its decision. We will not speculate or assume that the court's response pressured or coerced the jurors into arriving at a verdict when there is no evidence to support such a conclusion.

[14] Notably, our Supreme Court has consistently found that a court's instruction for the jury to keep deliberating—even without notice or input from the parties—was harmless. See Lott, 690 N.E.2d at 209-10 (finding no reversible error where the court responded to the jury's report of deadlock, without notifying the parties, by sending the bailiff to instruct the jury to continue deliberating); Nichols v. State, 591 N.E.2d 134, 138 (Ind. 1992) (holding that any error was harmless where the court instructed the jury, without notifying the parties, to keep deliberating in response to the jury's note indicating deadlock); Wine v. State, 539 N.E.2d 932, 935 (Ind. 1989) (finding no reversible error where the court received notice that the jury was deadlocked and instructed the jury to continue deliberating for one hour without notifying the parties). And here, unlike in the previously cited cases, Tutrow's counsel was notified of, present at, and actively engaged in determining the court's response to the jury. Thus, any error caused by the court proceeding with the discussion and instructing the jury without Tutrow present was harmless and therefore cannot be fundamental. See Lockridge, No. 22A-CR-1381, at *3 (mem.) (finding no fundamental error where the trial court instructed the jury to keep deliberating after discussing the instruction with both parties and receiving no objection), trans. denied.

2.2. Constitutional claims

[15] Tutrow next contends the trial court violated his right under the U.S. Constitution to be present at every critical stage of the proceedings. See Appellant's Br. at 9. Pursuant to the Sixth Amendment, applied to the states through the Fourteenth Amendment Due Process Clause, criminal defendants have “a right to be present at any proceeding that is critical to the outcome of the trial and where [his] involuntary absence would thwart a fair and just hearing.” Bush v. State, 208 N.E.3d 605, 612 (Ind. Ct. App. 2023) (citing Ridley v. State, 690 N.E.2d 177, 180 (Ind. 1997), overruled on other grounds by Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002)), trans. denied. However, Tutrow presents no argument regarding why the hearing at issue was critical to the outcome of the trial or how his absence threatened its fairness. See Ridley, 690 N.E.2d at 180 (“If a defendant can contribute or gain nothing from attending the proceeding, then his due process right is not violated.”). Thus, his due process claim fails. See Minor, 252 N.E.3d at 987 (finding no reversible error under the federal constitution where defendant did not prove that the interaction at issue “triggered a critical stage where he was required to be present and heard”).

[16] Tutrow also asserts his right to be present under Article 1, Section 13 of the Indiana Constitution was violated. The Indiana constitution similarly grants defendants the right to be present during all critical stages of the proceedings. Hernandez v. State, 761 N.E.2d 845, 853 (Ind 2002), reh'g denied. Pursuant to Article 1, Section 13 specifically, “a defendant's absence from proceedings where the jury is present raises an inference of prejudice unless the defendant expressly waives his right to be present.” Bush, 208 N.E.3d at 612 (emphasis added). Only the defendant can waive that right. Ridley, 690 N.E.2d at 181. The State can nonetheless rebut the inference of prejudice by showing that the defendant's absence was harmless. Id. First, as discussed above, Tutrow fails to present any argument as to why the discussion at issue here constituted a “critical stage” of the proceeding. Furthermore, no inference of prejudice arose under this provision here because the jury was not present when the trial court and counsel discussed and crafted a response to its note. See id. (concluding “the [defendant's] right to be present under [Article 1, Section] 13 was not implicated” because “[n]one of the proceedings at issue ․ occurred in the presence of the jury”). Thus, Tutrow has failed to show his right to be present pursuant to Article 1, Section 13 was implicated by the discussion held about the jury's note, let alone violated.

2.3. Indiana Jury Rule 28

[17] He also argues his presence was required pursuant to Jury Rule 28. That rule provides:

If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.

Ind. Jury Rule 28 (emphases added). Tutrow claims the trial court violated this rule when it failed to sua sponte require his presence at the proceeding at which the court and counsel addressed the jury's note. However, the defendant in a criminal case need only be present under this rule if the court “inquire[s] of the jurors[,]” which the court did not do here. Id. Here, instead of asking whether or how the court or counsel could assist the jurors in their deliberative process, the message sent back to the jurors was simply to continue engaging in the deliberative process. Thus, Tutrow's presence was not required. And to the extent Tutrow argues that the court was required to inquire of the jurors, this rule's use of the word “may” clearly indicates the court is permitted, but not required, to do so. This is consistent with the precedents discussed above finding no reversible error where courts responded to deadlocked juries with a straightforward and neutral message to deliberate a while longer. Tutrow has failed to show the court violated Jury Rule 28 by proceeding with the discussion in his absence.

2.4. Lack of signature by the court in its response

[18] Tutrow's last argument is that without the judge's signature,“[t]here was no indication that the response came from the trial [c]ourt” so “[f]or all the jury knew, it was from the bailiff.” Appellant's Br. at 10. We are unpersuaded. There is no evidence the jury could not tell from whom the response came. The heading of the jury's note read “Question for Court[,]” and to assume the jury was confused or misled would be based on pure speculation. Tutrow provides no authority stating that the trial court's failure to sign the note or otherwise clearly identify itself as the entity responding constitutes error, let alone fundamental error.

Conclusion

[19] Finding no error, we affirm.

[20] Affirmed.

FOOTNOTES

1.   Tutrow was in the custody of the jail at this time.

DeBoer, Judge.

Brown, J., and Altice, J., concur.