MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Oct 06 2017, 10:21 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marietto V. Massilamany                                  Curtis T. Hill, Jr.
Massillamany & Jeter LLP                                 Attorney General of Indiana
Fishers, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Renteria,                                        October 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1701-CR-98
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable J. Richard
Appellee-Plaintiff                                       Campbell, Judge
                                                         Trial Court Cause No.
                                                         29D04-1602-F6-1261



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017          Page 1 of 11
[1]   Michael Renteria appeals his conviction for Level 6 felony operating a vehicle

      as a habitual traffic offender. 1 He asserts the trial court’s comments during

      closing argument prejudiced the jury against him. We affirm.



                               Facts and Procedural History
[2]   On February 4, 2016, Indiana State Trooper Cory Berfield was “sitting on the

      ramp from I-69 Northbound to 96 [sic] Street on the right shoulder,” (Tr. at 35),

      in Hamilton County, watching for traffic violations. His vehicle was equipped

      with license plate-reading equipment. The equipment reads the license plates of

      passing cars and indicates any problems, such as “stolen license plates . . .

      expired license plates, [and] suspended drivers.” (Id. at 34.)


[3]   As one car passed, the equipment sounded an alert because a particular license

      plate was registered to a driver with a suspended license, Michael Renteria.

      Trooper Berfield followed the car “on the overpass over to I-69 westbound” in

      Hamilton County. (Id. at 37.) As Trooper Berfield followed the car, he used

      the information from the plate-reading equipment and the BMV system

      accessible in his vehicle 2 to verify the driver of the vehicle matched the

      description of Renteria and Renteria still had a suspended license. Based on




      1
          Ind. Code § 9-30-10-16 (2015).
      2
       The access to the BMV system is via a “CAD system that is linked to the BMV [and] would notify as to
      whether the registered owner of the vehicles are [sic] still currently suspended[.]” (Tr. at 34.) Additionally,
      “it gives a general description of the owner or the registered owners of the vehicle, male, female, height,
      weight, age.” (Id. at 35.)

      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017                Page 2 of 11
      that information, Trooper Berfield initiated a traffic stop. By the time Trooper

      Berfield was able to conduct the traffic stop, Renteria had driven into Marion

      County. When asked for his license, Renteria told Trooper Berfield “he

      thought he knew it was suspended[, but] he was driving for [his girlfriend]

      because she didn’t like driving on the interstate.” (Id. at 37.) 3


[4]   On February 18, 2016, the State charged Renteria with Level 6 felony operating

      a vehicle as a habitual traffic offender. The case was heard by a jury. During

      closing arguments, Renteria’s counsel said:

              The Defendant, Mr. Renteria, was charged with operating a
              motor vehicle in Hamilton County while a habitual traffic
              violator. I don’t think we ever heard any testimony that the stop
              occurred that way. Your memory is better than mine but I don’t
              recall even testimony stating it happened in Hamilton County.
              But that is your memory not mine.


      (Id. at 107.)


[5]   At the end of defense counsel’s argument, the trial court corrected her statement

      by saying: “The Court notes for the record that there was testimony that the

      stop, not the stop but the driving was in Hamilton County on westbound 96

      [sic] Street. So, I needed to correct the record there.” (Id. at 113.) Defense

      counsel did not object at that time to the trial court’s correction of her




      3
        In his defense, Renteria denied making the statement that he knew his license was suspended but agreed the
      rest of Trooper Berfield’s testimony was “[p]retty consistent.” (Tr. at 73.)

      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017            Page 3 of 11
      misstatement of the evidence. In the State’s rebuttal argument, the State

      “clarif[ied] there was testimony from the officer that the Defendant was driving

      in Hamilton County.” (Id. at 114.)


[6]   After the trial court gave final instructions to the jury and the jury retired to

      deliberate, defense counsel told the trial court she had one issue:

              In closing of course, you make it clear that nothing that the
              attorneys say is evidence. Again, I don’t remember him saying
              missing 96 [sic] Street. I don’t remember him saying Hamilton
              County. I don’t remember but it’s your memory not mine. But I
              think, with all due respect, when the Court made its comment I
              think that was inappropriate because it bolsters, well, the Judge
              said, he said versus as I told the jury. I don’t remember saying
              anything but I could be wrong because somebody can focus on so
              many things. And that’s why I kept telling the jury that’s your
              memory not mine. So, I just believe that it was error in my
              opinion for the Court to make that statement. Because then I
              believe instead of the jurors going back deliberating, well nothing
              she says is evidence, but did he say it or did he not say Hamilton
              County - did he say Hamilton County? But I think by the Court
              saying that that the jurors are going to say the Judge said, he said
              it so that’s the end of the discussion. So, I just want to make that
              record.


      (Id. at 122.) To which the trial court responded:


              If you want to argue venue there is a statute that allows you to
              file a motion, in writing, to challenge venue. You are not going
              to get up there and on closing argument make an argument that
              is not supported by the record. You misstated the evidence. And
              I have a problem with that.



      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 4 of 11
      (Id. at 123.) Renteria was found guilty and sentenced accordingly.



                                 Discussion and Decision
[7]   It is essential to due process that a judge remain impartial. Hollowell v. State,

      707 N.E.2d 1014, 1022 (Ind. Ct. App. 1999). Juries afford “great respect” to

      judges, which adds more importance to any acts of partiality by a judge. Id.

      Thus, a trial court judge “has a duty to remain impartial and refrain from

      making unnecessary comments or remarks.” Id. “To assess whether the judge

      has crossed the barrier into impartiality, we examine both the judge’s actions

      and demeanor.” Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g

      denied, cert. denied. Nevertheless, not all judicial remarks “constitute reversible

      error; the remarks must harm the complaining party or interfere with the right

      to a fair trial.” Hollowell, 707 N.E.2d at 1022. Moreover, “a trial judge must be

      given latitude to run the courtroom and maintain discipline and control of the

      trial.” Timberlake, 690 N.E.2d at 256.


[8]   Renteria asserts the trial court’s statements were “unnecessary,” “prejudicial,”

      and “undermined defense counsel’s credibility.” (Appellant’s Br. at 6.) When

      reviewing such a claim on appeal, we presume the trial court judge is “unbiased

      and unprejudiced.” Perry v. State, 904 N.E.2d 302, 307 (Ind. Ct. App. 2009),

      trans. denied. To rebut that presumption, the appellant must show the judicial

      conduct placed him in jeopardy. Id. “Bias and prejudice violate a defendant’s

      due process right to a fair trial only where there is an undisputed claim or where



      Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 5 of 11
       the judge expressed an opinion of the controversy over which the judge was

       presiding.” Everling v. State, 929 N.E.2d 1281, 1288 (Ind. 2010).


[9]    In Hartwell v. State, defense counsel misstated the evidence during closing

       argument by claiming a trailer had been in use during the theft of items from a

       mobile home. The State objected to the argument as there was nothing in the

       record regarding a trailer. The trial court “corrected the item and instruct[ed

       the jury] to disregard any conversation about a trailer because there was no

       testimony . . . of a trailer involved[.]” Hartwell v. State, 162 Ind. App. 445, 447-

       8, 321 N.E.2d 228, 230 (1974). Such a correction was deemed not prejudicial

       as “it is the duty of the trial court to see that [counsel] refrain” from

       commenting in argument “on matters not in evidence[.]” Id. (quoting Adler v.

       State, 242 Ind. 9, 12, 175 N.E.2d 358, 359 (1961)).


[10]   Here, after defense counsel’s closing arguments and without the State making

       an objection, the trial court corrected defense counsel’s assertion there was no

       evidence Renteria’s driving occurred in Hamilton County. Trooper Berfield

       and Renteria agreed Renteria had been driving in Hamilton County. Defense

       counsel’s statements to the contrary were incorrect and the trial court noted

       that.


[11]   Nevertheless, Renteria’s counsel was not making an argument about matters

       not in evidence, as had happened in Hartwell. Rather, she argued evidence had

       not been presented when it had. The trial court, therefore, was not

       admonishing counsel to refrain from discussing matters not in evidence, but was


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 6 of 11
       correcting counsel’s assertion about facts in evidence. If such evidence is an

       element of the offense, that evidence is a matter of dispute for the jury to decide.

       See Everling, 929 N.E.2d at 1288 (bias and prejudice violate due process if the

       judge’s comments are expressed regarding a matter of dispute).


[12]   However, here, venue was not an issue being placed before the jury; thus, we

       must decide whether the trial court’s statement was prejudicial. 4 “Court’s

       Preliminary Instruction No. 4” stated:

                  The crime of Operating a Vehicle as a Habitual Traffic Violator,
                  as charged in Count 1, is defined by law as follows:

                  A person who operates a motor vehicle while said person’s
                  driving privileges were validly suspended under 9-30-10 and the
                  person knows that the person’s driving privileges were suspended
                  commits Operating a Vehicle as an Habitual Traffic Violator, a
                  level 6 Felony [sic].

                  Before you may convict the Defendant, the State must have
                  proved each of the following elements beyond a reasonable
                  doubt:

                  The Defendant

                  1. operated a motor vehicle;
                  2. when the Defendant’s driving privileges were validly suspended under
                  9-30-10;
                  3. and the Defendant knew that his driving privileges were suspended.

                  If the State failed to prove each of these elements beyond a



       4
           Renteria does not challenge venue on appeal.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 7 of 11
               reasonable doubt, you must find the Defendant not guilty of
               Operating a Vehicle as a Habitual Traffic Violator, a level 6
               Felony [sic], as charged in Count 1.


       (App. Vol. II at 46) (emphasis added) (original formatting removed).


[13]   After discussion of the final instructions, wherein defense counsel expressed

       concerns about the burden of proof regarding Renteria’s knowledge of the

       suspension, the trial court then gave “Court’s Final Instruction No. 2” stating:

               The crime of Operating a Vehicle as a Habitual Traffic Violator,
               as charged in Count 1, is defined by law as follows:

               A person who operates a motor vehicle while said person’s
               driving privileges were validly suspended under 9-30-10 and the
               person knows that the person’s driving privileges were suspended
               commits Operating a Vehicle as a Habitual Traffic Violator, a
               level 6 Felony [sic].

               Before you may convict the Defendant, the State must have
               proved each of the following elements beyond a reasonable
               doubt:

               The Defendant

               1. operated a motor vehicle;
               2. when the Defendant’s driving privileges were validly suspended under
               9-30-10;
               3. and the Defendant knew that his driving privileges were suspended.

               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               Operating a Vehicle as a Habitual Traffic Violator, a level 6
               Felony [sic], as charged in Count 1.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 8 of 11
       (Id. at 54) (emphasis added) (original formatting removed).


[14]   In addition, the trial court instructed the jury: “Nothing [the trial court] say[s]

       or do[es] is intended to recommend what facts or what verdict you should

       find.” (Id. at 50.) It also instructed the jury that “final statements [by the

       attorneys] are not evidence[.]” (Id. at 52.) Thus, although Renteria argues the

       trial court’s statements regarding his counsel’s closing argument “undermined

       defense counsel’s credibility,” (Appellant’s Br. at 6), defense counsel’s

       credibility was not at issue. The jury was told specifically her statements “are

       not evidence [and y]ou may accept or reject those arguments as you see fit.”

       (App. Vol. II at 52.) We have no reason to believe the jury did not follow the

       court’s instructions. See Tharpe v. State, 955 N.E.2d 836, 842 (Ind. Ct. App.

       2011) (“We presume juries follow the admonitions of the court and

       admonitions cure any prejudice resulting from an error.”), trans. denied.


[15]   Therefore, because the issue of venue was not presented to the jury and because

       the trial court appropriately instructed the jury regarding what should be

       considered or disregarded, the trial court’s comments about the evidence of

       venue were not prejudicial to Renteria’s defense. See id. (“Any prejudice from

       the judge’s facial expressions was cured when the judge admonished the jury to

       disregard them.”).


[16]   Even though the trial court’s comments would have intruded into the jury’s

       province to weigh the evidence if the jury had been given the issue of venue, as

       the jury was not given that issue, Renteria has not demonstrated any possible


       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 9 of 11
       error was harmful. Harmless error is an error that does not affect a party’s

       substantial rights. Littler v. State, 871 N.E.2d 276, 278 (Ind. 2007).

       Harmlessness is ultimately a question of the likely impact on the jury. Id. The

       harmless error analysis applies to restrictions on closing argument. Nelson v.

       State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003), trans. denied.


[17]   The State was required to present evidence Renteria’s license was suspended

       and he knew of the suspension. Ind. Code § 9-30-10-16 (2015). The State

       presented such evidence by producing the BMV records showing the suspension

       and the mailed notices to Renteria regarding it, together with testimony from

       the BMV clerk. Additionally, Trooper Berfield testified Renteria stated “he

       thought he knew it was suspended.” (Tr. at 37.) Although Renteria disputed

       Trooper Berfield’s account and the BMV records, we cannot reweigh the

       evidence. See Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999) (appellate court

       does not reweigh evidence or judge the credibility of witnesses). Thus, for the

       issues given to the jury to decide, the State presented sufficient evidence to

       support the jury’s decision and any error introduced by the trial court’s

       statement after counsel’s closing argument is rendered harmless.



                                               Conclusion
[18]   The court did not comment on an issue that was put to the jury and Renteria

       has not demonstrated prejudice. Any such error, if present, was harmless.

       Accordingly, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 10 of 11
[19]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1701-CR-98 | October 6, 2017   Page 11 of 11
