MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2020, 9:22 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jaquail Smith, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1613 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff Judge Trial Court Cause No. 34C01-1711-MR-232
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 1 of 6 Case Summary [1] Jaquail Smith appeals his conviction, following a jury trial, for murder. The
sole issue presented for our review is whether the State presented sufficient
evidence to support the conviction. Finding the evidence sufficient, we affirm.
Facts and Procedural History [2] The facts most favorable to the verdict indicate that Smith started living with his
girlfriend, K.M., in June 2017. K.M. gave birth to a son, A.M., on September
10, 2017. K.M. was A.M.’s primary caretaker. Smith had watched A.M. only
one time for K.M. prior to November 2017. On the morning of November 8,
2017, A.M. woke up at approximately 6:15 a.m. and, according to K.M., was
behaving completely normal. That evening, K.M. went to run errands, and she
left eight-week-old A.M. in Smith’s care. Before she left, K.M. fed A.M.,
burped him, changed his diaper, and left him on her bed. A.M. did not have
any injuries before K.M. left.
[3] When K.M. returned to the apartment at approximately 7:00 p.m., she walked
back to the bedroom and saw Smith sitting on the bed with A.M. K.M.
immediately noticed that A.M.’s head was swollen on the side. A.M. “was
trying to cry but he couldn’t and he could hardly breathe … [it was] like he was
conscious but he wasn’t.” Tr. Vol. 2 at 58. Smith was “flipp[ing] out” and told
K.M. that they needed to go to the hospital. Id. at 57. Smith repeatedly denied
knowing what had happened to A.M. The couple took A.M. to Community
Howard Regional Health Hospital, and from there he was airlifted to Riley
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 2 of 6 Hospital for Children in Indianapolis. When K.M. arrived at Riley, a doctor
informed her that A.M.’s feet “were turning purple” and that “they had to
revive him a few times on the air lift there and that it’s not looking good.” Id. at
63. Doctors “encouraged [K.M.] to give it another hour and if nothing changed
then [she had] the option of whether to pull [A.M.] off the ventilator or not.”
Id. Shortly thereafter, K.M. chose to remove A.M. from the ventilator. A.M.
died at 3:25 a.m. on November 9, 2017.
[4] An autopsy revealed that A.M.’s cause of death was blunt force injury to the
head. Specifically, A.M. suffered a biparietal skull fracture running from the
parietal bone of the skull on one side to the temporal bone of the skull on the
other. Stated another way, “[t]his was a large fracture or break in the skull”
that then caused extensive “subscalp and subgaleal hemorrhage.” Id. at 103,
105. This kind of injury would have resulted in “nearly immediate symptoms.
This would not be a child who appears normal … there would be some visible
changes … in the baby’s behavior nearly … simultaneously” to the injury. Id.
at 106. In addition to the blunt force injury to the head, the autopsy revealed
several older healing injuries including rib fractures, clavicular fractures, and
ulnar fractures that possibly represented “a pattern of previous injuries.” Id. at
108.
[5] Smith was twice interviewed by police. During the first interview, he denied
having any idea what happened to A.M. He stated that he was alone in the
apartment with A.M. for at least two hours, that he fell asleep playing video
games, and that at one point he went to check on A.M. and the baby wasn’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 3 of 6 breathing. He pinched A.M.’s cheek to wake him up, and A.M. started crying.
Smith then returned to playing video games. Smith stated that he did not notice
that A.M.’s head was swollen until after K.M. returned home. During the
second interview, Smith again denied knowing what happened to A.M. He
confirmed that he was alone with A.M. for a period of time and that A.M.’s
head was not swollen when K.M. left the apartment.
[6] Smith was arrested on November 22, 2017. Smith told his cellmate that he
killed A.M. Smith claimed that he was in another room when A.M., who had
been napping, rolled off the bed, hit his head on the nightstand, and started to
cry. Smith stated that he then “bludgeoned the infant” in the head with a glass
mason jar. Id. at 148.
[7] The State charged Smith with murder, level 1 felony aggravated battery, and
level 2 felony voluntary manslaughter. A jury trial was held on July 11 through
July 13, 2019. The jury found Smith guilty of murder and aggravated battery.
Due to double jeopardy concerns, the trial court entered judgment of conviction
solely on the murder count, and sentenced Smith to a term of sixty-five years.
This appeal ensued.
Discussion and Decision [8] Smith challenges the sufficiency of the evidence supporting his murder
conviction. When reviewing a claim of insufficient evidence, we neither
reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,
499 (Ind. 2015). We look to the evidence and reasonable inferences drawn
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 4 of 6 therefrom that support the conviction, and will affirm if there is probative
evidence from which a reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the
trier of fact is enough to support the conviction, then the reviewing court will
not disturb it. Id. at 500. It is well settled that a conviction “may be sustained
based on circumstantial evidence alone if that circumstantial evidence supports
a reasonable inference of guilt.” Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct.
App. 2003), trans. denied.
[9] A person who knowingly or intentionally kills another human being commits
murder. Ind. Code § 35-42-1-1. Here, the State presented uncontroverted
evidence that Smith was alone with A.M. for approximately two hours on
November 8, 2017. K.M. testified that when she returned to the apartment,
A.M.’s head was swollen and he was having trouble breathing. A.M.’s cause of
death was determined to be blunt force trauma to the head. Smith admitted to
his cellmate that he bludgeoned A.M. in the head with a glass mason jar
because the infant was crying. Police found several mason jars in the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2020, 9:22 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jaquail Smith, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1613 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff Judge Trial Court Cause No. 34C01-1711-MR-232
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 1 of 6 Case Summary [1] Jaquail Smith appeals his conviction, following a jury trial, for murder. The
sole issue presented for our review is whether the State presented sufficient
evidence to support the conviction. Finding the evidence sufficient, we affirm.
Facts and Procedural History [2] The facts most favorable to the verdict indicate that Smith started living with his
girlfriend, K.M., in June 2017. K.M. gave birth to a son, A.M., on September
10, 2017. K.M. was A.M.’s primary caretaker. Smith had watched A.M. only
one time for K.M. prior to November 2017. On the morning of November 8,
2017, A.M. woke up at approximately 6:15 a.m. and, according to K.M., was
behaving completely normal. That evening, K.M. went to run errands, and she
left eight-week-old A.M. in Smith’s care. Before she left, K.M. fed A.M.,
burped him, changed his diaper, and left him on her bed. A.M. did not have
any injuries before K.M. left.
[3] When K.M. returned to the apartment at approximately 7:00 p.m., she walked
back to the bedroom and saw Smith sitting on the bed with A.M. K.M.
immediately noticed that A.M.’s head was swollen on the side. A.M. “was
trying to cry but he couldn’t and he could hardly breathe … [it was] like he was
conscious but he wasn’t.” Tr. Vol. 2 at 58. Smith was “flipp[ing] out” and told
K.M. that they needed to go to the hospital. Id. at 57. Smith repeatedly denied
knowing what had happened to A.M. The couple took A.M. to Community
Howard Regional Health Hospital, and from there he was airlifted to Riley
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 2 of 6 Hospital for Children in Indianapolis. When K.M. arrived at Riley, a doctor
informed her that A.M.’s feet “were turning purple” and that “they had to
revive him a few times on the air lift there and that it’s not looking good.” Id. at
63. Doctors “encouraged [K.M.] to give it another hour and if nothing changed
then [she had] the option of whether to pull [A.M.] off the ventilator or not.”
Id. Shortly thereafter, K.M. chose to remove A.M. from the ventilator. A.M.
died at 3:25 a.m. on November 9, 2017.
[4] An autopsy revealed that A.M.’s cause of death was blunt force injury to the
head. Specifically, A.M. suffered a biparietal skull fracture running from the
parietal bone of the skull on one side to the temporal bone of the skull on the
other. Stated another way, “[t]his was a large fracture or break in the skull”
that then caused extensive “subscalp and subgaleal hemorrhage.” Id. at 103,
105. This kind of injury would have resulted in “nearly immediate symptoms.
This would not be a child who appears normal … there would be some visible
changes … in the baby’s behavior nearly … simultaneously” to the injury. Id.
at 106. In addition to the blunt force injury to the head, the autopsy revealed
several older healing injuries including rib fractures, clavicular fractures, and
ulnar fractures that possibly represented “a pattern of previous injuries.” Id. at
108.
[5] Smith was twice interviewed by police. During the first interview, he denied
having any idea what happened to A.M. He stated that he was alone in the
apartment with A.M. for at least two hours, that he fell asleep playing video
games, and that at one point he went to check on A.M. and the baby wasn’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 3 of 6 breathing. He pinched A.M.’s cheek to wake him up, and A.M. started crying.
Smith then returned to playing video games. Smith stated that he did not notice
that A.M.’s head was swollen until after K.M. returned home. During the
second interview, Smith again denied knowing what happened to A.M. He
confirmed that he was alone with A.M. for a period of time and that A.M.’s
head was not swollen when K.M. left the apartment.
[6] Smith was arrested on November 22, 2017. Smith told his cellmate that he
killed A.M. Smith claimed that he was in another room when A.M., who had
been napping, rolled off the bed, hit his head on the nightstand, and started to
cry. Smith stated that he then “bludgeoned the infant” in the head with a glass
mason jar. Id. at 148.
[7] The State charged Smith with murder, level 1 felony aggravated battery, and
level 2 felony voluntary manslaughter. A jury trial was held on July 11 through
July 13, 2019. The jury found Smith guilty of murder and aggravated battery.
Due to double jeopardy concerns, the trial court entered judgment of conviction
solely on the murder count, and sentenced Smith to a term of sixty-five years.
This appeal ensued.
Discussion and Decision [8] Smith challenges the sufficiency of the evidence supporting his murder
conviction. When reviewing a claim of insufficient evidence, we neither
reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,
499 (Ind. 2015). We look to the evidence and reasonable inferences drawn
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 4 of 6 therefrom that support the conviction, and will affirm if there is probative
evidence from which a reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the
trier of fact is enough to support the conviction, then the reviewing court will
not disturb it. Id. at 500. It is well settled that a conviction “may be sustained
based on circumstantial evidence alone if that circumstantial evidence supports
a reasonable inference of guilt.” Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct.
App. 2003), trans. denied.
[9] A person who knowingly or intentionally kills another human being commits
murder. Ind. Code § 35-42-1-1. Here, the State presented uncontroverted
evidence that Smith was alone with A.M. for approximately two hours on
November 8, 2017. K.M. testified that when she returned to the apartment,
A.M.’s head was swollen and he was having trouble breathing. A.M.’s cause of
death was determined to be blunt force trauma to the head. Smith admitted to
his cellmate that he bludgeoned A.M. in the head with a glass mason jar
because the infant was crying. Police found several mason jars in the
apartment, and Smith’s own testimony confirmed that he went to the apartment
while A.M. was in the hospital and hid a glass mason jar in the bushes.1
[10] Smith complains that the evidence was “conflicting” and that the jury was
presented with “equally plausible” versions of events and chose the State’s
version rather than his. Appellant’s Br. at 10. This is precisely the jury’s
1 Smith claimed that he did so because the mason jar contained marijuana.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 5 of 6 prerogative. See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (it is
exclusive province of jury to weigh conflicting evidence). The State presented
substantial evidence of probative value to support the jury’s verdict.
[11] To the extent that Smith also claims that the trial court erred in instructing the
jury by “misle[ading] the jury on the issue of reasonable doubt,” Appellant’s Br.
at 8, Smith has waived our review of this issue. First, Smith’s appellate
argument is not cogent. A party waives an issue where the party fails to
develop a cogent argument. Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct.
App. 2009). Moreover, it is well settled that “at a minimum, ‘appellate review
of a claim of error in the giving of a jury instruction requires a timely trial
objection clearly identifying both the claimed objectionable matter and the
grounds for the objection[.]’” Bowman v. State, 51 N.E.3d 1174, 1179 (Ind.
2016) (citation omitted). Smith failed to object at trial to either the preliminary
or final jury instructions, and he makes no claim that fundamental error
occurred. See Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000) (failure to object
to jury instruction results in waiver on appeal unless giving instruction was
fundamental error). Accordingly, we need not address his instructional claim.
His conviction is affirmed.
[12] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1613 | January 31, 2020 Page 6 of 6