begins for man accused of shooting two people in Batesville
Wanda English Burnett
A jury trial got underway this week in Ripley County Circuit
Court with prosecutor Ric Hertel asking the jurors to listen to
the witnesses and find James L. Fernbach, Jr., 36, of Batesville,
guilty, but mentally ill.
Defense attorney Mark Jones said my client regrettably did
shoot two people...we cant undo what happened. But,
Jones argued when Fernbach committed those acts he was legally
The case stems back to a double shooting that occurred outside
the Day Nite Food Mart in Batesville on April 4, 2009.
Fernbach had shot Phillip Cruser, 58, of Westport and Benjamin
Dick, 28, of Sunman.
Defense agreed with the prosecutor that the crimes were totally
random. There was no motive or reason for the crimes,
Jones said in his opening statement on Wednesday. The shooter
and the victims didnt know each other.
Fernbach has been charged with two counts of Attempted Murder
that has forever changed the lives of three people: Phillip and
Roberta Cruser and Ben Dick.
Phillip Cruser and his wife of 36 years, Roberta, simply made
a choice to stop at the Day Nite Store in Batesville to purchase
diesel because it was cheaper there. That savings has cost them
great heartbreak and hardship that will never end.
Phillip was shot in the head as he sat in his truck. He had fueled
his truck and pulled away from the pumps and was waiting for his
wife who had gone into the store to pay for the fuel and purchase
Roberta entered the truck and had just handed her husband his
wallet when she heard the noise and saw her husbands head
Phillip told the jurors he never saw Fernbach coming to his truck
and didnt know he had been shot. He said everything went
dark and remembers thinking the gas station had blown up. He said
his next memory was that his hands and feet were in an outward
position and he felt like he was floating. He said he could hear
noise but it was total darkness. I thought maybe I was dead,
he told the jury.
The lives of the Crusers have changed dramatically. Phil was gainfully
employed at the time of the incident - now he is on permanent
disability. There is a bullet lodged in his head that can never
be removed because it is situated too close to a sinus vein. He
now takes 18 pills a day opposed to the four he took for his diabetes
before the shooting.
He has hearing aids in both ears now due to damage done from the
close range gunshot. Headaches are constant, he testified, they
never completely stop. He cant drive, ride his motorcycle
or really enjoy hobbies like he used to. Phil sleeps a lot and
according to his wife, would sleep 24 hours a day if she would
let him. He still sees a neurosurgeon.
Ben Dick of Sunman, was also a victim of Fernbachs shooting.
The 28-year-old father of two said he pled for his life telling
Fernback he had two children. He also told him the cops were coming.
Dick testified he was getting out of his truck to go inside the
Day Nite Store as he had done many times in the past. He heard
the gunshot when Fernbach shot Phillip and then he came after
him. He looked me right in the eye, Dick testified.
He said a struggle ensued. I thought I was going to get
finished off that day, he said.
He testified that he didnt know Fernbach and had never seen
him before that day. As the two men struggled, Fernbach pulled
the trigger with Dick managing to get shot in the hand rather
than the head. But, he said, it was close. His wife sat in the
courtroom and softly cried as her husband testified.
Wednesday was packed with testimony as two Batesville police officers
took the stand, Lt. Gandy Browning and Detective Mike Benjamin.
Lt. Browning told of the horrific scene he encountered as he responded
to the 911 call for help.
Store clerk Bonnie Burk testified she was scared the day of the
shooting and scared in court. She said she saw Fernbach as he
exited the store after having what she described as a normal conversation
with him. He then went to a truck outside the store, raised his
hand, and shot someone. Then she said he started fighting with
another customer outside and the gun went off again. She called
Susan Fernbach, wife of the defendant at the time of the shootings,
was called to the witness stand. The two were married for seven
years and had dated for three.
She testified that she noticed her husbands mental illness
in 2007, said he was a social drinker and had smoked marijuana
once before they were married.
Susan testified her husband never carried a weapon or popped pills.
She said he worked for a construction company in Cincinnati. She
said her husband quit his job to take care of her father who was
dying from cancer in 2006. He didnt go back to work after
The former wife of the defendant testified at length about the
multiple doctors, hospital trips, and treatments her husband had
gone through. She said he was depressed, paranoid, anxious and
The night before the shootings she said he was okay and had even
had a campout in their living room with his son (with an ex-girlfriend),
and a nephew of hers. She said her and her mother were in the
home, but didnt join the camping activities in the living
Susan said on the day of the shooting it seemed like a normal
day, as they ate breakfast, all but Fernbach, and he took his
son home. While he seemed a little aggravated upon returning from
taking his son home, she said that was normal. She told how he
said he was going to smoke a cigarette and returned within a half
hour or so to say, I think I hurt somebody. He had
blood on him, but didnt show the gun. She thought he had
been in a car accident. She said her husband then picked up the
phone and called 911. I didnt know what to think -
I was crying, she told the jurors. When she asked him what
had happened he just told her he was sorry.
Susan testified that Fernbach was taking his medicine to her knowledge,
but wasnt seeing his doctor on a regular basis on April
4, 2009. Matter of fact, he hadnt seen a doctor since January
of that year, according to medical records.
She said she wasnt aware of her husband abusing illegal
Prosecutor Ric Hertel showed medical records where the defendant
was abusing illegal drugs, smoking marijuana, to help with his
anxiety, but the paperwork showed it was in fact making it worse.
He was diagnosed with several things over the course of his treatment,
one being bi-polar and along with polysubstance abuse.
More testimony on Wednesday came from Deputy Dale Holbert, Lynn
Baurley, a nurse at the Ripley County Jail, where Fernbach is
incarcerated, and 911 dispatcher Debbie Patton who took the 911
call from Fernbach.
In the tape that was played earlier in the day, Fernbach said,
I think I just killed somebody...I pray to God I didnt.
That was nine minutes after the shooting occurred.
The prosecutor maintains Fernbach knew what he was doing. After
all, he said the defendant went to Cincinnati and purchased the
gun from someone on the street.
Defense says it would take someone who was insane to shoot two
people, then call 911 on yourself.
The trial will resume Thursday morning at 8 a.m.
(Editors note: The final coverage of the outcome of the
trial will be published in next weeks Osgood Journal.