MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Jan 25 2018, 10:00 am
regarded as precedent or cited before any
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
Andrew L. Teel                                           Curtis T. Hill, Jr.
Haller & Colvin, P.C.                                    Attorney General of Indiana
Fort Wayne, Indiana
                                                         Larry Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricky L. Williford,                                      January 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A04-1608-CR-1852
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Kevin P. Wallace,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         17D01-1504-F2-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018           Page 1 of 16
                                       Statement of the Case
[1]   Ricky L. Williford (“Williford”) appeals his conviction for Level 2 felony

      possession of a destructive device or explosive with intent to kill, injure,

      intimidate, or to destroy property (“possession of a destructive device”) 1 and his

      status as an habitual offender.2 On appeal, he argues that: (1) the trial court

      abused its discretion when it denied his motion for a mistrial on his possession

      of a destructive device conviction because, during the habitual offender phase of

      his trial, a juror impeached the possession of a destructive device verdict; (2) the

      trial court erred when it impaneled a new jury to hear the habitual offender

      phase of his trial after the first jury could not reach a determination; and (3)

      there was insufficient evidence to support his possession of a destructive device

      conviction. Because we conclude that the trial court did not abuse its discretion

      or err and because there was sufficient evidence, we affirm Williford’s

      conviction.


[2]   We affirm.


                                                     Issues
                 1. Whether the trial court abused its discretion when it denied
                    Williford’s motion for a mistrial after the first phase of his trial.

                 2. Whether the trial court erred when it impaneled a new jury to
                    hear the habitual offender phase of Williford’s trial.



      1
          IND. CODE § 35-47.5-5-8.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 2 of 16
              3. Whether the State produced sufficient evidence to convict
                 Williford of Level 2 felony possession of a destructive device.

                                                     Facts
[3]   At some point in 2014, Williford began to believe that Joshua Rupert

      (“Rupert”), whom he had known for “quite a few years,” owed him four

      hundred dollars. (Tr. Vol. 1 at 163). Rupert disputed the debt, so he did not

      pay Williford the money. As a result, Williford began sending Rupert

      threatening text messages and making threatening calls, demanding the money.


[4]   One day in late September or early October 2014, Williford came to the garage

      where Rupert worked on vehicles in Auburn, Indiana and “beat[]” on the door

      demanding to be let in. (Tr. Vol. 1 at 166). When Rupert answered the door,

      Williford pushed him backwards, pulled out a gun, and began “ranting and

      raving” that Rupert owed him money. (Tr. Vol. 1 at 166). He fired a round

      from the gun and threatened to shoot Rupert’s dog if Rupert did not pay him

      back by the end of the week. Williford then tipped over a display case and ran

      out the garage door. Later, Williford sent Rupert a text asking if he “had the

      money yet,” and Rupert told him that he did not. (Tr. Vol. 1 at 168).


[5]   On the night of October 13, 2014 and into early morning of October 14,

      Williford spent time hanging out with his friends Doug Bishop (“Bishop”) and

      Ryan Likens (“Likens”). Around 5:00 a.m. on October 14, Bishop and

      Williford drove Likens home so that he could go to work. After dropping off

      Likens, they drove by Rupert’s garage and noticed that his light was on.


      Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 3 of 16
      Williford directed Bishop, who was driving, to “keep going and turn down

      Indiana South.” (Tr. Vol. 1 at 107). Bishop continued to drive down a couple

      more streets and then parked in a cul-de-sac. At that point, Williford “jumped

      out and took off,” carrying a bag and heading “north towards Rupert’s

      [house].” (Tr. Vol. 1 at 107). Bishop sat in his van “wondering what [was]

      going on,” and a couple of minutes later he heard a “pretty good size[d]”

      explosion. (Tr. Vol. 1 at 108). After that, Williford came back, running and

      “out of wind.” (Tr. Vol. 1 at 108). He told Bishop to take off, so they drove

      away from the cul-de-sac.


[6]   Williford told Bishop where to drive, and they eventually turned onto Eighth

      Street in Auburn. There, Williford asked Bishop to pull over. He took off his

      shoes and discarded them in a trash bin on Eighth Street. Bishop asked him

      why he had done that, and Williford said that “he just wanted to get rid of

      them.” (Tr. Vol. 1 at 111). Williford then pulled another pair of shoes out of

      the bag he had taken with him when he had left the van and put those shoes on.


[7]   In the meantime, at around 5:45 to 5:50 a.m., an explosion had occurred in

      Rupert’s truck, which was parked outside of his garage. Detective Richard

      Page (“Detective Page”), a detective and bomb technician with the Fort Wayne

      Police Department, responded to the scene. In the truck, he discovered a blue

      cooler with damage indicating that it had contained an explosive device. The

      lid of the cooler was gone, and its zipper was torn apart. As a result of the

      explosion, the door and roof of the truck had “buckled outward.” (Tr. Vol. 1 at

      216). The windshield and rear window of the truck were missing, and there

      Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 4 of 16
       were “little dents” in the top of the truck and in the seat, which were consistent

       with damage from BBs or fragments that would have been inside of the device

       when it exploded. (Tr. Vol. 1 at 217). There were BBs and debris in the truck

       and on the asphalt next to the truck, and the truck’s windshield was found

       seventy feet to the north.


[8]    Based on the evidence at the scene, Detective Page determined that the

       explosive device had been a “low explosive”— an explosive made from “things

       you can buy off the shelf” that “detonate at a rate slower than thirty-three

       hundred feet per second.” (Tr. Vol. 1 at 226). He estimated that the device had

       been made of at least six to ten grams of flash powder, a mix of chemicals used

       mostly in the pyrotechnics industry.


[9]    Investigators interviewed Bishop several times after the explosion and learned

       about his activities with Williford on the morning of October 14, although

       Bishop gave differing accounts about their activities. The investigators also

       found shoes matching the description of Williford’s shoes in a trash bin on

       Eighth Street.


[10]   On April 7, 2015, the State charged Williford with Level 2 felony possession of

       a destructive device and with being an habitual offender.3 The trial court held a

       jury trial from May 10-12, 2016. At trial, Bishop testified to his activities with




       3
        The State also charged Williford with a second count of Class A felony possession of a destructive device
       based on a separate incident regarding an explosive device. However, because the jury found Williford not
       guilty of that charge, we have not included the facts or charging information for that incident here.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018         Page 5 of 16
       Williford, as described above, on the morning that Rupert’s truck had exploded.

       On cross-examination, he admitted that this account of events did not match

       previous accounts he had given to the police. Bishop explained that he had

       previously “not wanted to say anything at first” because he had been “freaked

       out” and “trying to protect [himself]” and “everybody else involved.” (Tr. Vol.

       1 at 125-26).


[11]   Also during Bishop’s testimony, the State admitted a recording and transcript of

       a phone call that Williford had made from jail to Bishop. During the call, the

       following exchange occurred:


               Williford: Hey, did they ahh get ahold of you and harass you a
               bit?

               Bishop: Yeh.

               Williford: Yeh. What ja tell them? What’d they say?

               Bishop: Aw they were just – I don’t know man. They already
               knew everything.

               Williford: Like what?

               Bishop: About me and, it was strange.

               Williford: About what?

               Bishop: About me.

               Williford: What do you mean about you?

               Bish[op]: They were just – I don’t know – they were really
               strange about what they were saying.

               Williford: They were trying to lead you on bro.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 6 of 16
               Bishop: Yep.

               Williford: They were fishing.

               Bishop: That’s what I figured.

               Williford: [T]hey were fishing.

               Bishop: Ri-right.

               Williford: Hey remember that day in the van? I told – hey – You
               said, uh – you said “To the grave, beserk?”

               Bishop: Right.

               Williford: Hey, tha-that’s how it is bro. There ain’t nothing but
               you and me.

               Bishop: Right.


       (State’s Ex. 11) (Misspellings and improper grammar in original). Bishop

       testified that Bezerk had been a best friend of his. He explained that, during the

       conversation in the van mentioned in the phone call, he had told Williford that

       “they could take it to the grave like [he] and Bezerk did.” (Tr. Vol. 1 at 122).

       However, he did not clarify what he had told Williford that they could take to

       the grave.


[12]   Cari Ann Day (“Day”), a woman who lived on Seventh Street in Auburn, also

       testified. She said that the back of her house was on Eighth Street and that, on

       October 14, 2014, she had seen a suspicious van drive “really slow[ly]” up

       Eighth Street sometime between 6:00 and 8:00 a.m. (Tr. Vol. 1 at 155). The

       van had stopped at the trash bins on the street, and the passenger had thrown a

       pair of shoes into the trash. Day testified that she had reported the incident

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 7 of 16
       because, when she told her mother about it, her mother had told her it might be

       connected to the truck explosion. When Williford asked Day on cross-

       examination whether she could narrow down the time frame for when she saw

       the van, she responded that her mother had been at work when she called her,

       so it must have been after 7:00 a.m. However, Day did not clarify how much

       time had elapsed after seeing the van before she had called her mom.


[13]   At the conclusion of the trial, the jury found Williford guilty of Level 2 felony

       possession of a destructive device. The trial court asked whether the State or

       Defense “wish[ed] to have the Jurors individually polled regarding the verdict,”

       and Williford’s counsel responded “No your Honor.” (Tr. Vol. 2 at 85).


[14]   After the jury returned its verdict, the trial court proceeded to the second phase

       of the trial regarding Williford’s habitual offender allegation. During the jury

       deliberations on the habitual offender charge, the trial court received a note

       from a juror that said “I am feeling sicker and sicker. I cannot [] give him the

       Habitual Offender vote[,] so I need you to excuse me and use one of the

       alternates.” (Tr. Vol. 2 at 94). The trial court questioned the juror outside of

       the presence of the rest of the jury, and she said that her blood pressure was

       “going higher” because she did not “like being the only one who d[id not] agree

       with everybody else.” (Tr. Vol. 2 at 98). She further explained that she had

       gone along with the other jurors in finding Williford guilty of possession of a

       destructive device but could not “put him in the Habitual Offender class”

       because she did not “believe he was that bad.” (Tr. Vol. 2 at 98, 99). She said

       she had had “some reasonable doubts” as to his guilt of the possession of a

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 8 of 16
       destructive device but had concluded, after hearing Williford’s “intimidation”

       in the jail phone call, that Williford “could be guilty of all the rest of it.” (Tr.

       Vol. 2 at 99, 101).


[15]   After the trial court talked to the juror, Williford moved for a mistrial on the

       grounds that the juror had been coerced into agreeing to a guilty verdict on the

       underlying offense. The trial court denied the motion for a mistrial as to phase

       one, but it found that there was a mistrial as a result of a hung jury with respect

       to the habitual offender phase.


[16]   Thereafter, on June 28, 2016, the trial court convened a second jury to hear the

       evidence regarding the habitual offender charge. During this second phase of

       the trial, the State introduced Williford’s judgment of conviction for his 2002

       Class B felony dealing in cocaine or a narcotic drug conviction and the

       sentencing order for his 2007 Class C felony attempted robbery conviction.

       Detective John Phillip Snover of the Auburn Police Department also testified

       that Williford had been convicted of Level 2 felony possession of a destructive

       device in the instant cause on May 12, 2016. At the conclusion of the

       presentation of evidence, the jury found Williford to be an habitual offender.


[17]   The trial court sentenced Williford to an executed term of twenty-five (25) years

       for his possession of a destructive device conviction. This sentence was

       enhanced by an additional ten (10) years for his habitual offender finding. The

       trial court also ordered Williford to serve this sentence consecutively to any




       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 9 of 16
       previously imposed sentences, for an aggregate sentence of thirty-five (35)

       years. Williford now appeals.


                                                   Decision
[18]   On appeal, Williford argues that: (1) the trial court abused its discretion when

       it denied his motion for a mistrial; (2) the trial court erred when it impaneled a

       second jury to try his habitual offender allegation; and (3) there was insufficient

       evidence to prove that he possessed a destructive device. We will address each

       of these arguments in turn.


       1. Motion for Mistrial


[19]   As stated above, Williford moved for a mistrial during the second phase of his

       trial after a juror came forward and said that she had had “some reasonable

       doubts” as to his guilt of possession of a destructive device. (Tr. Vol. 2 at 99).

       He argued that the juror had impeached the jury’s verdict and that, accordingly,

       the trial court should have declared a mistrial as to the first phase of the trial.

       Because the trial court denied his motion, Williford now argues that the trial

       court abused its discretion.


[20]   First, we note that “‘a mistrial is an extreme remedy that is only justified when

       other remedial measures are insufficient to rectify the situation.’” Isom v. State,

       31 N.E.3d 469, 481 (Ind. 2015) (quoting Mickens v. State, 742 N.E.2d 927, 929

       (Ind. 2001)), reh’g denied, cert. denied. Whether to grant or deny a motion for a

       mistrial lies within the sound discretion of the trial court, and we will review the

       trial court’s decision for an abuse of discretion. Id. at 480. “‘We accord great
       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 10 of 16
       deference to the trial court’s decision, as it is in the best position to gauge the

       circumstances and the probable impact on the jury.’” Phillips v. State, 22 N.E.3d

       749, 757-68 (Ind. Ct. App. 2014) (quoting Evans v. State, 855 N.E.2d 378, 386

       (Ind. Ct. App. 2006) (internal quote omitted)), trans. denied. In determining

       whether a mistrial is warranted, the relevant inquiry is whether the defendant

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

       subjected; the gravity of the peril is determined by the probable persuasive effect

       on the jury’s decision. Id. at 758.


[21]   It is a well-established rule in Indiana that a jury’s verdict may not be

       impeached by jurors who subsequently submit a contradictory affidavit or

       testimony. See Shaw v. State, 82 N.E.3d 886 (Ind. Ct. App. 2017). Our Indiana

       Supreme Court has explained the policy concerns behind this rule as follows:


               If this Court were to permit individual jurors to make affidavits
               or give testimony disclosing the manner of deliberation in the
               jury room and their version of the reasons for rendering a
               particular verdict, there would be no reasonable end to litigation.
               Jurors would be harassed by both sides of litigation and find
               themselves in a contest of affidavits and counter-affidavits and
               arguments and rearguments as to why and how a certain verdict
               was reached. Such an unsettled state of affairs would be a
               disservice to the parties litigant and an unconscionable burden
               upon citizens who serve on juries.


       Stinson v. State, 313 N.E.2d 699, 704 (Ind. 1974).


[22]   While Williford recognizes this precedent, he argues that the instant case is

       different because the juror in this case volunteered information impeaching her

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 11 of 16
       verdict while the jury was still impaneled. He claims that “[p]ermitting a juror

       to change her mind while still empaneled [sic] is not meaningfully different

       from permitting a juror to change her mind during polling.” (Williford’s Br.

       27). We disagree.


[23]   In Ward v. St. Mary Medical Ctr. of Gary, 658 N.E.2d 893, 895 (Ind. 1995), our

       supreme court held that a jury’s verdict may not be impeached by the testimony

       of a juror, even when the testimony is voluntary and the jury is still impaneled.

       Williford asserts that this precedent does not apply because Ward was a civil

       case rather than a criminal case. However, in support of its determination that

       testimony while the jury is still impaneled may not impeach the verdict, the

       Ward Court cited Karlos v. State, 476 N.E.2d 819, 824 (Ind. 1985), a criminal

       case. Id. As a result, whether the case is criminal or civil, the general rule

       remains the same: a jury’s verdict cannot be impeached by the voluntary

       testimony of a juror, even when the jury is still impaneled. To create even a

       limited exception “would perpetuate unending litigation ‘where no jury verdict

       would ever be lasting or conclusive.’” Ward, 658 N.E.2d at 895 (internal

       quotation omitted). Accordingly, we decline to deviate from Ward based on the

       criminal context of the jury’s verdict.


[24]   Further, “permitting a juror to change her mind while still impaneled” here

       would not be, as Williford argues, equivalent to “permitting a juror to change

       her mind during polling.” (Williford’s Br. 27). The object of polling the jury is

       to “give the parties an opportunity to ascertain with certainty that a unanimous

       verdict has been reached before the verdict is recorded and the jury discharged.”

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 12 of 16
       Jelks v. State, 720 N.E.2d 1171, 1173 (Ind. Ct. App. 1999). If, during polling,

       any juror dissents from the verdict, the remedy is that “the jury shall be sent out

       to deliberate” again. I.C. § 34-36-1-9. See Jelks, 720 N.E.2d at 1173, 1174

       (noting that INDIANA CODE § 34-36-1-9 applies to criminal cases through

       INDIANA CODE § 35-35-2-2 and that “[t]he statute clearly provides that the

       remedy for juror dissent that arises during the polling procedure is to return the

       jury for deliberations . . .”).


[25]   Here, Williford rejected the opportunity to poll the jury, so the trial court

       moved on to the second phase of the trial. We have previously noted that

       “[o]ne of the purposes of bifurcation is to keep convictions away from the jury

       in their initial determination of guilt for the substantive crime charged.” Russell

       v. State, 997 N.E.2d 351, 354 (Ind. 2013). Accordingly, during the habitual

       offender phase of the trial, the jury members learned additional information

       about Williford’s past convictions that they did not know during their

       deliberation of his possession of a destructive device charge. Therefore, they

       could no longer be sent back to deliberate on the possession of a destructive

       device charge based on the same evidence that they had originally considered.


[26]   In light of these factors, we conclude that the juror could not later impeach the

       jury’s verdict, even though the jury was still impaneled. Thus, the trial court

       did not abuse its discretion when it denied Williford’s motion for a mistrial.


       2. Habitual Offender Adjudication




       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 13 of 16
[27]   Williford next argues that the trial court erred when it impaneled a second jury

       to try the habitual offender charge after the second phase of the first trial ended

       in a mistrial due to a hung jury. He asks us to interpret the relevant statutory

       provision, INDIANA CODE § 35-50-2-8(h), as requiring the same jury who heard

       the underlying offense phase of a trial to also hear the habitual offender phase.

       However, this argument directly contradicts our supreme court’s holding that

       INDIANA CODE § 35-50-2-8(h) permits the retrial by a second jury on a habitual

       offender charge when the first jury cannot reach a verdict. See Stewart v. State,

       688 N.E.2d 1254, 1258 (Ind. 1997). We decline Williford’s request to re-

       evaluate this precedent.


       3. Sufficiency of the Evidence


[28]   Finally, Williford argues that there was insufficient evidence to support his

       conviction for possession of a destructive device. Our standard of review for

       sufficiency of the evidence claims is well-settled. We consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or

       judge witness credibility. Id. We will affirm the conviction unless no

       reasonable fact finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. The evidence is sufficient if an inference may be

       reasonably drawn from it to support the verdict. Id. at 147.


[29]   In order to convict Williford of possession of a destructive device, the State had

       to prove beyond a reasonable doubt that he: “possesse[d]” a “destructive device


       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 14 of 16
       or explosive with the knowledge or intent that it [would] be used to kill, injure,

       or intimidate an individual or to destroy property.” I.C. § 35-47.5-5-8.


[30]   Williford claims that there was insufficient evidence to support his conviction

       because his conviction was based on Bishop’s testimony at trial, which was,

       according to Williford, incredibly dubious. In general, the uncorroborated

       testimony of one victim is sufficient to sustain a conviction. Holeton v. State, 853

       N.E.2d 539, 541 (Ind. Ct. App. 2006). However, the incredible dubiosity rule

       allows the appellate court to impinge upon the fact-finder’s assessment of

       witness credibility when the testimony at trial was “so contradictory that the

       verdict reached would be inherently improbable.” Moore v. State, 27 N.E.3d

       749, 751 (Ind. 2015). “For the incredible dubiosity rule to apply, the evidence

       presented must be so unbelievable, incredible, or improbable that no reasonable

       person could ever reach a guilty verdict based upon that evidence alone.” Id. A

       court will impinge upon the jury’s duty to judge witness credibility only “‘where

       a sole witness presents inherently contradictory testimony which is equivocal or

       the result of coercion and there is a complete lack of circumstantial evidence of the

       appellant’s guilt.’” Id. (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.

       1994)) (emphasis added in Moore).


[31]   We conclude that the incredible dubiosity rule does not apply here because

       Bishop was not the sole witness, and there was circumstantial evidence of

       Williford’s guilt. In addition to Bishop’s testimony, Rupert testified that

       Williford had previously threatened him in his garage, and there was evidence

       of a jail phone call in which Williford told Bishop to take it “[t]o the grave,

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018   Page 15 of 16
       beserk.” (State’s Ex. 11). Day also corroborated Bishop’s testimony that

       Williford had dumped his shoes in the garbage can on Eighth Street after the

       explosion, and shoes matching the description of Williford’s shoes were found

       in the garbage bin.4


[32]   Based on these additional witnesses and evidence supporting Williford’s guilt,

       we conclude that the incredible dubiosity rule does not apply. As Williford

       does not otherwise challenge the sufficiency of the evidence, we find that there

       was sufficient evidence to support Williford’s conviction.


[33]   Affirmed.


       May, J., and Brown, J., concur.




       4
         Williford claims that Day’s testimony did not corroborate Bishop’s testimony because too much time
       passed between the time when the explosion happened and the time when Day said Williford abandoned the
       shoes. However, Williford bases this argument on Day’s testimony that she called her mother to tell her
       about the van and that her mother was at work, which would have been after 7:00 a.m. This argument fails
       to account for the fact that Day did not clarify during her testimony how much time had passed after she saw
       the van on Eighth Street before she called her mother. Moreover, she testified that she saw the van between
       6:00 and 8:00 a.m., which was consistent with the timeline to which Bishop testified. Accordingly, we
       conclude that Day’s testimony did corroborate Bishop’s testimony.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018        Page 16 of 16
