Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                         Jan 17 2012, 8:46 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CHRIS P. FRAZIER                                  GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  J.T. WHITEHEAD
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ALIESHA YOUNG,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 49A04-1106-CR-336
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Richard D. Sallee, Senior Judge
                            Cause No. 49F18-0905-FD-47802



                                       January 17, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Aliesha Young appeals her convictions for criminal recklessness, as a Class D

felony, and criminal mischief, as a Class D felony, following a jury trial. Young presents

a single issue for our review, which we restate as whether the trial court abused its

discretion when it did not declare a mistrial following allegedly improper remarks made

by the prosecutor in his closing argument.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On April 25, 2009, Young, who was then living with her boyfriend, Frank

Marshall, encountered Patrice Allen, who has a child with Marshall. Allen had just

dropped off their child at Marshall’s house, and she and Marshall had argued before she

left in a car with her mother, three other children, and a nephew. Allen’s car was stopped

at a nearby intersection when Young approached that location in her car. Young pulled

up next to Allen’s car, and the two women argued while they sat in their respective cars.

At one point, Young threw a thirty-two ounce cup containing liquid at Allen, and the cup

and its contents struck Allen in her face.

       Allen then exited her car and was standing near the open door of her car when

Young drove her car towards Allen and pinned her between the two cars. Young then put

her car in reverse, freeing Allen. But Young drove towards Allen a second time, and

Allen jumped up and landed on the hood of Young’s car. Young then drove off, with

Allen clinging to the hood of her car. After driving erratically for some distance, Young

eventually stopped the car, causing Allen to be thrown from the hood of the car to the

ground. Young then struck Allen with her car a third time before driving away. A
                                             2
responding police officer observed abrasions on Allen’s legs and arms, but she refused

medical treatment.

       The State charged Young with criminal recklessness and criminal mischief. The

State presented the testimony of four eyewitnesses, including a bystander, Tina Burns,

who is unrelated to Allen. Young testified in her defense that Allen and her family

members attacked Young and that her conduct was only intended to evade further attack.

A jury found Young guilty as charged. And the trial court entered judgment and sentence

accordingly. This appeal ensued.

                            DISCUSSION AND DECISION

       Young contends that during the State’s closing argument, the prosecutor made

comments suggesting that Young bore the burden to prove her innocence.               Young

maintains that those comments constituted prosecutorial misconduct that placed her in a

position of grave peril. We cannot agree.

       At trial, Young testified on direct examination that Allen had a knife and used it to

cut Young’s face during the altercation. And Young testified on cross examination that

Allen damaged the hood of her car after she “jumped” on it. Transcript at 160. The

prosecutor asked Young whether she had photographs of the damage to her car, without

objection, and Young responded in the negative. The prosecutor also asked Young

whether she had photographs of the alleged cut to her face, to which Young responded

that she did have photographs of the injury and that she intended to show those

photographs to the jury. Again, Young did not object to those questions. And Young did

not submit any photos of her alleged injury to the jury.


                                             3
       During the State’s closing argument, the prosecutor stated in relevant part:

       Now let’s take a second to look at who are you going to believe. Are you
       going to believe [Allen] and [Allen’s mother] and [Allen’s son] and
       [Burns]? You are going to believe them or you are going to believe the
       Defendant’s testimony. Let’s just take a brief second to look at her
       testimony. Her testimony is that the kids as well as [Allen] got out of the
       car and started beating on her car—started attacking her car. Said that there
       was damage to the hood of her car, right, show us the pictures, show us
       something to corroborate it. Patrice Allen said her leg was injured. We
       showed you the pictures. Said the car was injured, we showed you the
       pictures. Where [are] [Young’s] pictures? If she says the car was damaged
       why can’t she show pictures? Maybe she is not believable. . . . She said the
       victim stuck her hand in the car while riding on the hood holding on with
       the other hand. Stuck her hand through her window and stabbed her. So
       she was injured, great show us the picture. Show us the cut on the face.
       Patrice was injured. We showed you the pictures. Is she believable?

Transcript at 182-83 (emphases added).

       Young did not make a contemporaneous objection, but later, at the conclusion of

the State’s closing argument and outside the presence of the jury, Young objected to the

comments and moved for a mistrial. The trial court denied that motion and called the

jury back into the courtroom. Then, in the presence of the jury, Young objected to the

comments again and requested an admonishment. Both the prosecutor and the trial court

clarified to the jury that the State bore the burden of proof. In particular, the following

colloquy occurred:

       DEFENSE COUNSEL:           Judge our objection is just that in the State’s
       closing argument they [sic] seemed to characterize that the defense had a
       burden to show pictures or show something and we just wanted to
       admonish the jury that it has no burden to do anything. It is the State’s
       burden to prove that my client is guilty of the elements . . . of the crime[s]
       she has been charged with.

       COURT:        You have any response to that?

       PROSECUTOR:          It was not the State’s intent, Your Honor, to give any
       impression that the defense had a burden of any kind.
                                             4
       COURT:       Okay, now the jury has heard the arguments that they made
       and you’ve heard the evidence, you can decide your case based on the law
       and the evidence and I will instruct you later that the defense has no burden
       to prove anything. But whether he implied they had a burden I am not sure
       but you have heard the argument.

Id. at 190 (emphasis added). Defense counsel did not ask the trial court to make any

further admonishment or move for mistrial, but proceeded to make his closing argument.

The trial court’s final instructions to the jury included instructions that the State had to

prove each element of the crimes beyond a reasonable doubt.

       Because the trial court is in the best position to evaluate the relevant circumstances

of an event and its impact on the jury, the trial court’s determination of whether to grant a

mistrial is afforded great deference on appeal. Bradley v. State, 649 N.E.2d 100, 107

(Ind. 1995). To succeed on appeal from the denial of a motion for mistrial, the appellant

must demonstrate the statement or conduct in question was so prejudicial and

inflammatory that he was placed in a position of grave peril to which he should not have

been subjected. Id. Mistrial is an extreme remedy invoked only when no other measure

can rectify the perilous situation. Id. We determine the gravity of the peril based upon

the probable persuasive effect of the misconduct on the jury’s decision rather than upon

the degree of impropriety of the conduct. Id. at 107-08. Moreover, reversible error is

seldom found when the trial court has admonished the jury to disregard a statement made

during the proceedings. Id. at 108. Failure to grant a mistrial may not be asserted on

appeal where an admonishment is accepted without further objection or claim that it is

insufficient. TRW Vehicle Safety Sys. v. Moore, 936 N.E.2d 201, 213 (Ind. 2010).



                                             5
          For the first time on appeal, Young asserts that the trial court’s admonishment was

insufficient to cure the alleged prejudice. In particular, she maintains that the trial court’s

statement “did not carry the force of a proper admonishment and thus was insufficient to

undo the damage done by the State’s suggestion that Young had a burden to produce

photographic evidence to prove her innocence.” Brief of Appellant at 9. But not only did

Young accept the trial court’s admonishment without further objection or argument, but

Young did not reiterate her demand for a mistrial, which had been made prior to her

request for an admonishment. Accordingly, the issue is waived. See id. Indeed, Young

has also waived the issue for failure to make a contemporaneous objection to the alleged

improper comments.        The challenged remarks appear on pages 182 and 183 of the

transcript, but Young’s objection does not appear until page 190 of the transcript. See

Etienne v. State, 716 N.E.2d 457, 461 n.3 (Ind. 1999) (holding alleged prosecutorial

misconduct waived where objection appeared “nine sentences later” than the challenged

remarks in the transcript).

          Waiver notwithstanding, we address the merits of Young’s contention on appeal.

It is improper for a prosecutor to suggest that a defendant shoulders the burden of proof

in a criminal case. Stephenson v. State, 742 N.E.2d 463, 483 (Ind. 2001), cert. denied,

534 U.S. 1105 (2002).         However, a prosecutor’s improper statements suggesting a

defendant’s failure to present evidence may be cured by the trial court advising the jury

that the defendant was not required to prove his innocence or to present any evidence.

See id.

          Here, Young testified that she had photographs of the injury to her face, and in

closing, the prosecutor merely pointed out that Young did not submit any such photos to
                                               6
the jury.   And the prosecutor reiterated Young’s testimony that she did not have

photographs of the damage to her car. Any improper suggestion by the prosecutor that

Young bore the burden to prove her innocence by producing such photographs was

resolved after both the prosecutor and the trial court clarified otherwise. In addition, the

trial court gave several preliminary and final jury instructions informing the jury that the

State bore the burden to prove each element of each crime beyond a reasonable doubt.

And the trial court issued a preliminary instruction stating:

       Under the law of this State, a person charged with a crime is presumed to
       be innocent. To overcome the presumption of innocence, the State must
       prove the Defendant guilty of each essential element of the crime charged
       beyond a reasonable doubt.

       The Defendant is not required to present any evidence to prove her
       innocence or to prove or explain anything.

Id. at 72 (emphasis added). We conclude that Young has not demonstrated that the

prosecutor’s remarks placed her in a position of grave peril. Thus, we hold that the trial

court did not abuse its discretion when it denied her motion for a mistrial.            See

Stephenson, 742 N.E.2d at 483 (holding any misconduct was de minimus and overcome

by the admonishment and preliminary and final instructions stating that the State bore the

burden of proof).

       Affirmed.

ROBB, C.J., and VAIDIK, J., concur.




                                              7
