# Perry v. State

> Indiana Court of Appeals · June 5, 2007 · 867 N.E.2d 638

URL: https://www.frixlaw.com/law-library/cases/9714303

## Case

- **Full name:** Tony PERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** June 5, 2007
- **Citations:** 867 N.E.2d 638; 2007 Ind. App. LEXIS 1201; 2007 WL 1599329
- **Precedential status:** Published
- **Opinion:** Dissent by Crone
- **Judges:** Baker, Crone, Friedlander
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714303

## Opinion text

CRONE, Judge,
dissenting.
“It has been held repeatedly that a defendant is not entitled to a perfect trial, *645 but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction.” Averhart v. State, 614 N.E.2d 924, 929 (Ind.1993). I respectfully disagree with the majority’s conclusion that the trial court’s typographical error in its response to Jury Note # 4 is so egregious that it warrants the reversal of Perry’s convictions. Therefore, I dissent.
I would hold that Perry procedurally defaulted this issue by failing to object to the typographical error. Perry’s counsel read, signed, and “time-stamped” the trial court’s response and did not bring the typo to the court’s attention. Tr. at 957-64; Appellant’s App. at 172. “A party may not sit idly by, permit the court to act in a claimed erroneous manner, and subsequently attempt to take advantage of the alleged error.” Bunting v. State, 854 N.E.2d 921, 924 (Ind.Ct.App.2006), trans. denied.
Having waived this issue, Perry must establish fundamental error to warrant reversal. I do not believe that the mistake in this case rises to that level. “The fundamental error exception to the waiver rule is an extremely narrow one. To constitute fundamental error, the error must be a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.” Weis v. State, 825 N.E.2d 896, 902 (Ind.Ct.App.2005) (citation omitted). I find it extremely unlikely that the typo misled the jury and resulted in Perry’s conviction. The jury submitted the original set of four questions, all of which related to Chowning’s testimony and his interview with Detective Van Buskirk. The second of these references a question that Detective Van Buskirk asked Chowning; I seriously doubt that the ensuing typo led the jury to believe that Perry answered that question. Perry characterizes the prejudice resulting from the typo as “incalculable.” I would characterize it as minimal and certainly not rising to the level of fundamental error. I would therefore affirm Perry’s convictions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714303. Public record. Not legal advice.