MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 09 2020, 10:02 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Curtis T. Hill, Jr.
Bargersville, Indiana                                     Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony J. Castleman,                                     July 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2632
        v.                                                Appeal from the Adams Superior
                                                          Court
State of Indiana,                                         The Honorable Patrick R. Miller,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          01D01-1907-F6-168



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020                     Page 1 of 10
[1]   Anthony Castleman appeals his convictions for Class A Misdemeanor

      Conversion1 and Class A Misdemeanor Criminal Mischief,2 arguing that (1) his

      two convictions violate Indiana’s prohibition against double jeopardy; (2) the

      trial court erred when it denied his motion for a mistrial; and (3) the evidence

      was insufficient to support the convictions. Finding no double jeopardy

      violation, no error, and the evidence sufficient, we affirm.


                                                     Facts
[2]   Sometime in the late evening of June 20 or the early morning of June 21, 2019,

      Enos Gore was driving in his white truck with his friend, Castleman, in the

      passenger’s seat. The truck stalled on a country road that had been flooded with

      high waters. At 6 a.m. on the morning of June 21, 2019, Susie Brown was on

      her front porch when she observed a man in a black shirt splashing around in

      the high flood waters in front of her property. According to Brown, the man

      appeared to be “washing his pants,” tr. vol. II p. 141, and proceeded to walk

      onto her property. Brown became nervous as the man approached her house,

      but the man turned to walk onto the farm of her neighbor, Merlie Eicher.

      Brown stopped being concerned and went inside.


[3]   Later, Brown heard Eicher’s tractor start up, so she went back onto her porch.

      She looked out and saw the same man in the black shirt driving the tractor into




      1
          Ind. Code § 35-43-4-3(a).
      2
          I.C. § 35-43-1-2(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 2 of 10
      the high flood waters, where it stalled and became almost completely

      submerged. The man crawled out through the tractor’s back window and

      walked over to the passenger-side window of the stalled white truck.


[4]   Approximately fifteen minutes later, police arrived, at which point Brown

      observed the man in a black shirt, later identified as Castleman, and another

      man in a gray shirt, later identified as Gore, walk towards the officers.

      Lieutenant Dean Amstutz, who was on the scene, noticed that Castleman was

      soaked from the torso down. He also noticed a strong smell of alcohol on

      Castleman’s breath. Lieutenant Amstutz offered to give Castleman a ride to a

      nearby apartment, during which time Castleman broke down in tears and

      “start[ed] to talk to himself about how he’s in so much trouble.” Id. at 172.


[5]   Sometime later that day, Eicher returned home and discovered his tractor

      destroyed and submerged in water. He eventually called law enforcement.

      Eicher told Brown’s husband about what had had happened, which prompted

      Brown’s husband to tell Brown. Law enforcement decided to speak with Brown

      because she had witnessed the events from that morning, and the officers

      eventually obtained written statements from both Brown and Eicher.


[6]   On July 3, 2019, the State charged Castleman with Level 6 felony theft and

      Class A misdemeanor criminal mischief. Before his trial, Castleman filed a

      motion in limine, which the trial court granted, that precluded Brown from

      identifying Castleman as the person she had witnessed driving the tractor.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 3 of 10
[7]   During Castleman’s September 16, 2019, jury trial, Castleman’s counsel asked

      Corporal Patrick Piper of the Adams County Sheriff’s Office why law

      enforcement did not request additional evidence from the crime scene. In

      response, Corporal Piper said, “the witness statement from [Brown] identified

      the male subject wearing a black shirt the morning prior. He was identified as . .

      . Anthony Castleman.” Id. at 212. Castleman’s counsel objected, arguing that

      Corporal Piper violated the order in limine.


[8]   Then, while outside the jury’s presence, Castleman’s counsel moved for a

      mistrial, contending that Corporal Piper’s comment unduly prejudiced

      Castleman, even though it was Castleman’s counsel who asked the question.

      The trial court concluded that “it’s not a direct violation of the motion in limine

      because the motion in limine was directed directly at [Brown].” Id. at 215

      (emphases omitted). Ultimately, the trial court denied Castleman’s motion, but

      to ameliorate any prejudicial effect, went on to admonish the jury as follows:


              Ladies and gentlemen of the jury, before we call the next witness,
              the last witness who testified, Officer Piper, in his testimony made
              a statement that they, basically the law enforcement didn’t do
              further investigation to this because [Brown] had identified
              [Castleman] as their suspect. I will point that out to you that that is
              not accurate. That was not testified to by [Brown]. She never made
              a witness identification in this courtroom of anyone. She simply
              described an individual she saw and you are to understand that
              that’s the limits of her testimony at this point [sic] time. Regardless
              of what Officer Piper may have stated in that statement.


      Id. at 216 (emphases omitted).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 4 of 10
[9]    At the conclusion of trial, the jury found Castleman guilty of the lesser-included

       offense of Class A misdemeanor conversion and Class A misdemeanor criminal

       mischief. On October 9, 2019, the trial court sentenced Castleman to concurrent

       terms of 300 days in the county jail. Castleman now appeals.


                                    Discussion and Decision
                                         I. Double Jeopardy
[10]   First, Castleman argues that his two Class A misdemeanor convictions violate

       Indiana’s prohibition against double jeopardy. See generally Ind. Const. art. 1 §

       14. We review questions of double jeopardy de novo, giving no consideration to

       the trial court’s decision below. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.

       Ct. App. 2005).


[11]   More specifically, Castleman argues that there is a reasonable probability that

       the jury relied on the same facts to convict him of both conversion and criminal

       mischief. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). Under this “actual

       evidence” test, Castleman must show that there is “a reasonable probability that

       the evidentiary facts used by the fact-finder to establish the essential elements of

       one offense may also have been used to establish the essential elements of a

       second challenged offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).

       There is no double jeopardy violation when the evidentiary facts establishing

       the essential elements of one offense satisfy many, but not all, of the essential

       elements of the second offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 5 of 10
[12]   To convict Castleman of Class A misdemeanor conversion, the State was

       required to prove beyond a reasonable doubt that Castleman knowingly or

       intentionally exerted unauthorized control over the property of another person.

       I.C. § 35-43-4-3(a). To convict Castleman of Class A misdemeanor criminal

       mischief, the State was required to prove beyond a reasonable doubt that

       Castleman recklessly, knowingly, or intentionally damaged or defaced another

       person’s property without that person’s consent and that the pecuniary loss is

       between $750 and $50,000. I.C. § 35-43-1-2(a)(1).


[13]   Based on the record, the evidentiary facts that the jury probably used to

       establish that Castleman had committed conversion were that he knowingly or

       intentionally entered Eicher’s property and started using the tractor without

       Eicher’s authorization or consent. Then, the evidentiary facts that the jury

       probably used to establish that Castleman had committed criminal mischief

       were that Castleman, without Eicher’s consent, drove off in the tractor and

       plunged it into deep flood waters, where it became submerged and severely

       damaged; it is also undisputed that Eicher’s tractor was valued at

       approximately $28,000 before it was damaged.


[14]   Accordingly, Castleman cannot show that there was a reasonable probability

       that the jury relied on the same evidentiary facts to establish the essential

       elements of both offenses. Rather, the record shows that Castleman committed

       two separate acts—unauthorized control of the tractor and unauthorized

       operation/destruction of the tractor—during this timeframe. Therefore, because

       the evidentiary facts establishing the essential elements of one offense establish

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 6 of 10
       the essential elements of some, but not all, of the second offense, there is no

       double jeopardy violation.


                                                 II. Mistrial
[15]   Next, Castleman argues that the trial court erred when it denied his motion for

       a mistrial after admitting testimony that potentially prejudiced the jury, despite

       the trial court’s admonishment.


[16]   A mistrial is an “extreme remedy” that should be used only when no other

       curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57

       (Ind. 1995). Upon review of a denial of a motion for a mistrial, the defendant

       must demonstrate that the conduct complained of was both in error and had a

       probable persuasive effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821,

       825 (Ind. 2002). More specifically:


               [W]hen the trial court admonishes the jury to disregard the
               inadmissible evidence, the prejudicial impact of the evidence may
               be sufficiently mitigated. The question of whether a defendant was
               so prejudiced that the admonishment could not cure the error is
               one that must be determined by examining the facts of the
               particular case. The burden is on the defendant to show that he
               was harmed and placed in grave peril by the denial of the mistrial
               motion.


       Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003) (internal citations

       omitted). The decision to grant or deny a mistrial is within the sound discretion

       of the trial court, and we will reverse only when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances. Hall v. State,

       722 N.E.2d 1280, 1282 (Ind. Ct. App. 2000).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 7 of 10
[17]   Specifically, Castleman contends that Corporal Piper violated the order in

       limine and sufficiently prejudiced his case when Corporal Piper said, “the

       witness statement from [Brown] identified the male subject wearing a black

       shirt the morning prior. He was identified as . . . Anthony Castleman.” Tr. Vol.

       II p. 212.


[18]   We find Castleman’s argument to be unavailing. First, it should be noted that

       the trial court did not find that Corporal Piper’s testimony violated the order in

       limine because the order in limine was directed at Brown herself and

       specifically prohibited only Brown from identifying Castleman. We agree with

       the trial court’s assessment. By speaking about a different witness, Corporal

       Piper did not violate the narrow confines of the order in limine.


[19]   Secondly, even if Corporal Piper’s testimony violated the order in limine, the

       trial court stepped in to rectify the situation by admonishing the jury to

       disregard any testimony by Corporal Piper in which he referenced Brown’s

       direct identification of Castleman as the man driving the tractor. An

       admonishment such as this, we believe, was thorough and effective enough to

       diminish any prejudicial effect that Corporal Piper’s testimony may have had.


[20]   Finally, it bears repeating that a mistrial is an “extreme remedy” that should be

       used only when other curative measures cannot rectify a situation. Moore, 652

       N.E.2d at 57. Nothing in the record indicates that Corporal Piper’s testimony

       placed Castleman in grave peril. Given that there were other curative measures

       implemented by the trial court, a mistrial would not have been warranted in this


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 8 of 10
       situation. Therefore, we conclude that the trial court did not err when it denied

       Castleman’s motion for a mistrial.


                                  III. Sufficiency of Evidence
[21]   Finally, Castleman argues that the evidence was insufficient to support his two

       Class A misdemeanor convictions. When reviewing the sufficiency of the

       evidence supporting a conviction, we must affirm if the probative evidence and

       reasonable inferences drawn therefrom could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt. McHenry v. State,

       820 N.E.2d 124, 126 (Ind. 2005). It is not our job to reweigh the evidence or to

       judge the credibility of the witnesses, and we consider any conflicting evidence

       most favorably to the trial court’s ruling. Wright v. State, 828 N.E.2d 904, 906

       (Ind. 2005).


[22]   As we have already stated, to convict Castleman of Class A misdemeanor

       conversion, the State was required to prove beyond a reasonable doubt that

       Castleman knowingly or intentionally exerted unauthorized control over the

       property of another person. I.C. § 35-43-4-3(a). To convict Castleman of Class

       A misdemeanor criminal mischief, the State was required to prove beyond a

       reasonable doubt that Castleman recklessly, knowingly, or intentionally

       damaged or defaced another person’s property without that person’s consent

       and that the pecuniary loss is between $750 and $50,000. I.C. § 35-43-1-2(a)(1).


[23]   The only piece of evidence Castleman claims is insufficient is the identification

       of him as the person who committed those crimes. More to the point, he argues

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 9 of 10
       that “the State had to present substantial evidence of a probative value from

       which the jury could infer that he was the man who drove Eicher’s tractor into

       the flood waters,” but failed to do so. Appellant’s Br. p. 14-15.


[24]   There were only two people in the white truck on the night/morning of the

       incident: Castleman and Gore. While Brown could not and did not directly

       identify Castleman as the one who stumbled across her yard, entered Eicher’s

       property, took off on Eicher’s tractor, and then damaged that tractor in the high

       flood waters, she did describe the individual as someone wearing a black shirt.

       Castleman was wearing a black shirt, and we know that Gore was wearing a

       gray shirt. Plus, Lieutenant Amstutz, who was an officer on the scene, observed

       that Castleman was wearing a black shirt and was soaked from the torso down.

       Earlier that morning, Brown noticed a man leaving the white truck and

       washing his pants in the high waters. Further, while transporting Castleman to

       a nearby apartment, Lieutenant Amstutz witnessed Castleman crying and

       stating that “he’s in so much trouble.” Tr. Vol. II p. 172.


[25]   A reasonable factfinder could have inferred from this evidence that it was

       Castleman who left the white truck, became soaked from the water, and

       committed the two crimes. Thus, the evidence is sufficient.


[26]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2632 | July 9, 2020   Page 10 of 10
