Trial 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 can’t undo what happened.” But, Jones argued when Fernbach committed those acts he was legally insane.

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 didn’t 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 lottery tickets.

Roberta entered the truck and had just handed her husband his wallet when she heard the noise and saw her husband’s head fall forward.

Phillip told the jurors he never saw Fernbach coming to his truck and didn’t 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 can’t 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 Fernbach’s 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 didn’t 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 911.
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 husband’s 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 didn’t go back to work after that.

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 scared.
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 didn’t join the camping activities in the living room.

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 didn’t 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 didn’t 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 wasn’t seeing his doctor on a regular basis on April 4, 2009. Matter of fact, he hadn’t seen a doctor since January of that year, according to medical records.

She said she wasn’t aware of her husband abusing illegal drugs.

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 didn’t.” 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.

(Editor’s note: The final coverage of the outcome of the trial will be published in next week’s Osgood Journal.