                                                                             FILED
                                                                       Apr 10 2019, 5:50 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court



ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                            Curtis T. Hill, Jr.
Joas & Stotts                                               Attorney General of Indiana
Madison, Indiana
                                                            J.T. Whitehead
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Curtis S. Gridley,                                          April 10, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-1274
        v.                                                  Appeal from the Ripley Circuit
                                                            Court
State of Indiana,                                           The Honorable Ryan J. King,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            69C01-1703-F4-5


May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019                              Page 1 of 15
[1]   Curtis S. Gridley appeals his convictions of Level 4 felony attempt to

      manufacture methamphetamine 1 and Level 6 felony theft. 2 He presents three

      issues that we restate as:


                 1. Whether the trial court abused its discretion when it replaced
                    a juror during the presentation of evidence;


                 2. Whether the admission of testimony in contravention to the
                    order in limine constituted fundamental error; and


                 3. Whether the prosecutor’s statements during closing
                    arguments constituted fundamental error.


      We affirm.



                                Facts and Procedural History
[2]   On December 21, 2016, twenty-year-old Bradley Davis asked his uncle,

      Gridley, to purchase alcohol for him. In return, Gridley requested Davis assist

      him in purchasing other items. Davis picked up Gridley at Gridley’s mother’s

      house, and they drove to Kroger, where Gridley directed Davis to purchase

      lighter fluid and a cold pack. Then they went to a CVS pharmacy. Gridley

      went in alone and purchased a box of pseudoephedrine. Gridley asked Davis to




      1
          Ind. Code § 35-48-4-1.1 (2016).
      2
          Ind. Code § 35-43-4-2(a)(1) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019             Page 2 of 15
      go in and purchase more; however, the pharmacist told Davis they were sold

      out. When told this news, Gridley became “agitated.” (Tr. Vol. II at 120.)


[3]   Davis and Gridley proceeded to a liquor store, where Gridley went inside and

      bought a bottle of liquor for Davis. Gridley “said something about wanting to

      get high” to Davis. (Id. at 123.) On their way back to Gridley’s mother’s

      house, the men stopped at a Gillman’s Home Center. 3 Because Davis was out

      of cash and did not want to give Gridley the debit card he used, 4 both men went

      inside to make their purchases. After getting directions to the correct location

      in the store from a cashier, the men went to the aisle where pipe cutters were

      located. Gridley found one he liked but Davis did not see it again after Gridley

      picked it up. The men then picked out lighter fluid and drain cleaner. Gridley

      pointed to the type he wanted and Davis picked them up. Davis purchased the

      lighter fluid and drain cleaner.


[4]   Kyle Hitham, the general manager at Gillman’s Home Center, was notified a

      staff member had found empty packaging for a pipe cutting tool. Hitham

      reviewed his surveillance tapes and cash register system to narrow down when

      the tool may have been taken and who was in the store at that time. Hitham

      found surveillance showing Davis and Gridley in the store in the area where the




      3
        Gillman’s Home Center has a “lumber yard, hardware store . . . everything . . . you would need for home
      repair[.]” (Tr. Vol. II at 71-72.)
      4
          Davis and his significant other shared a debit card that was in the significant other’s name.


      Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019                                  Page 3 of 15
      pipe cutting tool was located. He confirmed their presence, via video

      surveillance, when they purchased the lighter fluid and drain cleaner.


[5]   Indiana State Trooper Howard “Chip” Ayers had educated Hitham in the

      ingredients needed to make methamphetamine. Hitham recognized the pipe

      cutting tool can be used to strip the lithium out of batteries and the lighter fluid

      and drain cleaner are used in the chemical process used to make

      methamphetamine. Based on that knowledge, once he had identified the men

      he suspected of theft, Hitham contacted Trooper Ayers.


[6]   Trooper Ayers, trained specifically in methamphetamine-related crimes,

      reviewed the surveillance footage provided by Hitham, together with the cash

      register sales data, and contacted Davis’ significant other in an attempt to locate

      Davis. Once Trooper Ayers contacted Davis, Davis volunteered to “come to

      the Indiana State Police Post located on the south portion of Versailles to speak

      with” Trooper Ayers. (Id. at 190.) Davis told Trooper Ayers everything that

      happened that day, including the purchases at Kroger and CVS. Davis’ account

      of the events cemented Trooper Ayers’ suspicions that Gridley was attempting

      to manufacture methamphetamine.


[7]   On March 3, 2017, the State charged Gridley with Level 4 felony conspiracy to

      manufacture methamphetamine, 5 Level 4 felony attempt to manufacture




      5
          Ind. Code § 35-48-4-1.1 (2016).


      Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019         Page 4 of 15
      methamphetamine, Level 6 felony possession of precursors, 6 and Class A

      misdemeanor theft. 7 On March 12, 2018, the State moved to dismiss the

      conspiracy and possession charges. The case proceeded to trial on three

      charges: attempt to manufacture methamphetamine as a Level 4 felony, theft as

      a Class A misdemeanor, and theft enhanced to a Level 6 felony based on prior

      convictions. The first two of these charges were presented to the jury.


[8]   While Gridley was in jail awaiting trial, he made a phone call to his mother

      wherein he stated, “Bradley Fuckin’ [sic] told on me. Bradley told everything.

      And you know the only me and Brad, [sic]” (Tr. Vol. II at 170.) The phone

      call was a “free call[,]” (id.), and was cut short because the jail “do[es]n’t give

      them a multitude of minutes on a [sic] free calls.” (Id.)


[9]   During Trooper Ayers’ testimony at trial, the trial court noted one of the jurors

      did not “seem to be with it.” (Id. at 206.) The State agreed the juror should be

      replaced with an alternate. The trial court stated: “For the record, it looks to

      me like he was falling asleep, then he also creates a lot of noises in his slumber,

      other jurors turned and looked at him and then looked at me like, what the

      heck.” (Id. at 207.) Gridley objected to dismissing the juror “without giving

      him a warning or giving him a chance to explain his behavior.” (Id. at 207-08.)

      The trial court called the juror to the bench and asked him about falling asleep.




      6
          Ind. Code § 35-48-4-14.5 (2014).
      7
          Ind. Code § 35-43-4-2(a) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019          Page 5 of 15
       The juror apologized and agreed he had been asleep. The trial court dismissed

       the juror and replaced him with an alternate. Gridley did not object to the

       dismissal or request a jury admonishment. Nevertheless, when the jury

       reconvened, the trial court addressed the jury:


                Ladies, and Gentleman, make sure your paying attention. Uh, I
                think I don’t have to explain as to way the other gentleman is no
                longer with us cause, numerous jurors were, I saw concern on
                your faces. Um, and quickly realized myself that the gentleman
                had and was falling in and out of consciousness, so he had to be
                excused. But, please, this is an important matter, we need your
                undivided attention as best as you could do.


       (Id. at 211) (errors in original).


[10]   On cross-examination, defense counsel asked Trooper Ayers, “What efforts did

       you make to try to talk to Mr. Gridley?” (Id. at 226.) Trooper Ayers

       responded, “Well, Mr. Gridley had been arrested on another offense through a

       separate county.” (Id.) Counsel requested to approach the bench and indicated

       Trooper Ayers’ answer exceeded the scope of the order in limine. 8 The State

       argued Gridley elicited this information because of the way he presented the

       question on cross-examination. The trial court directed Gridley to “change




       8
         Earlier in the proceedings, the trial court granted Gridley’s motion in limine. We cannot read the first page
       of the motion because either the original record or the e-filed record is too distorted. The parties appear to
       agree the motion requested evidence of Gridley’s prior conduct, statements, and criminal history not be
       admitted. As the parties appear to agree as to the scope of the motion, we proceed based on the parties’
       representations.

       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019                                  Page 6 of 15
       your line of questioning.” (Id. at 228.) Gridley did not object, request an

       admonishment, or request a mistrial.


[11]   During closing arguments, the State relied, in part, on the premise that

       methamphetamine manufacturing was harming the community as a whole.

       The State requested the jury rely on its common sense and life experience. The

       State delineated the evidence it had presented, i.e. the surveillance footage,

       Davis’ testimony about Gridley’s statements that day, Trooper Ayers’

       testimony about the ingredients needed to make methamphetamine, the records

       from CVS that show Gridley purchased pseudoephedrine, the records from

       Gillman’s showing the purchase of lighter fluid and drain cleaner, and the

       phone records from the jail. The State noted methamphetamine is “the same

       stuff th[at] poisons our community every single day[,]” (id. at 233), how “we’ve

       decided as a community, as a society, as a State, under our Law, that the

       manufacture of methamphetamine will not stand[,]” (id. at 234), that

       methamphetamine cooks in southern Indiana prefer the particular lighter fluid

       purchased by Gridley and Davis, and that methamphetamine manufacturing is

       “a community problem.” (Id. at 240.) The State then requested the jury “just

       hold the Defendant accountable.” (Id.) Gridley did not object to these

       statements.


[12]   The jury found Gridley guilty of attempt to manufacture methamphetamine

       and misdemeanor theft. Gridley then pled guilty to the facts allowing his theft

       conviction to be enhanced to Level 6 felony. The trial court sentenced Gridley

       to an aggregate sentence of eleven years.

       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019         Page 7 of 15
                                   Discussion and Decision
                                             Juror Replacement
[13]   Gridley argues the trial court abused its discretion by removing a sleeping

       juror. 9


                  Article I, § 13, of the Indiana Constitution guarantees a
                  defendant’s right to an impartial jury; therefore, a biased juror
                  must be dismissed. Ind. Trial Rule 47(B) provides in part,
                  “Alternate jurors in the order in which they are called shall
                  replace jurors who, prior to the time the jury returns its verdict,
                  become or are found to be unable or disqualified to perform their
                  duties.” Trial courts have broad discretion in determining
                  whether to replace a juror with an alternate, and we will only
                  reverse such determinations where we find them to be arbitrary,
                  capricious or an abuse of discretion.


       May v. State, 716 N.E.2d 419, 421 (Ind. 1999) (internal citations omitted). As

       the trial court is in the best position to assess the juror and the juror’s ability to

       perform his or her duties, “our review of the trial court’s decisions in these

       matters is highly deferential.” Id.




       9
         Because the removal occurred late in the presentation of evidence, Gridley attempts to analogize the
       removal to one that occurs during jury deliberations. If juror removal occurs during deliberations, removal is
       still “ultimately a matter requiring deference to the trial court’s judgment, but it raises a number of
       considerations not present before deliberations begin.” Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).
       However, the removal of Gridley’s juror did not occur during deliberations; it occurred part way through the
       State’s last witness. We decline Gridley’s invitation to extend those extra considerations to removal of a
       juror prior to deliberations. See, e.g., Campbell v. State, 500 N.E.2d 174, 181 (Ind. 1986) (deciding issue
       without reference to extra considerations when removal happened during presentation of evidence).

       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019                                Page 8 of 15
[14]   Here, the trial court noticed a juror was sleeping and making noises while

       sleeping that were disturbing other jurors. The trial court advised both

       Gridley’s counsel and the State of the situation. The State agreed the juror had

       been sleeping. Gridley’s counsel objected to the juror’s removal if the trial court

       was not going to give the juror a chance to explain. The trial court asked the

       juror to approach and asked him about sleeping. The juror admitted he had

       been sleeping and apologized. The trial court dismissed the juror and replaced

       him with an alternate. Gridley did not object to the dismissal and did not

       request the jury be admonished. When the trial reconvened, the trial court

       explained to the jury that the juror was no longer with them and advised them

       all to “make sure your [sic] paying attention.” (Tr. Vol. II at 211.) He

       acknowledged that he had seen the concern on their faces as the dismissed juror

       “was falling in and out of consciousness[.]” (Id.)


[15]   While the “mere falling asleep for a short time, by a juror, . . . does not of itself

       constitute a sufficient cause for a new trial[,]” McClary v. State, 75 Ind. 260, 262,

       (1881), the trial court did not abuse its discretion by replacing the sleeping juror

       with an alternate. The trial court questioned the juror, confirmed the juror had

       been sleeping, and explained to the remaining jurors the reason for the

       dismissal. In this case, the alternate juror was present and, presumably, awake

       up to the point of this juror’s dismissal and the jury had not begun deliberations.

       The trial court’s explanation of the juror’s dismissal negated any possible effect

       the dismissal may have had on the jury deliberations later in the process. See

       Casey v. State, 689 N.E.2d 465, 467 (Ind. Ct. App. 1997) (trial court’s dismissal


       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019          Page 9 of 15
       of the lone African-American juror after that juror “stated that his ‘system was

       all messed up’” was not an abuse of discretion because the trial court had

       “admonished the jury not to speculate as to the cause of the juror’s excusal”).


                                               Order in Limine
[16]   Gridley argues that Trooper Ayers testified in violation of the order in limine

       regarding references to prior bad acts. “Sanctions for violation of the trial

       court’s pretrial order are for the trial court to assess.” Ritchie v. State, 809

       N.E.2d 258, 269 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 (2005).

       Therefore, the issue on appeal is “whether the misconduct requires a retrial, not

       whether it violates a trial court order.” Id. As such, the trial court’s decision to

       grant a mistrial or to take a lesser step “is afforded great deference on appeal

       because the trial court is in the best position to gauge the surrounding

       circumstances of the event and its impact on the jury.” Schlomer v. State, 580

       N.E.2d 950, 955 (Ind. 1991).


[17]   Here, on cross-examination of Trooper Ayers, the following occurred:


               [Defense Counsel]: When did you first get the opportunity to
               have a conversation with Mr. Gridley about this case?


               [Trooper Ayers]: I never had that opportunity. I attempted to,
               but I never had that opportunity.


               [Defense Counsel]: What efforts did you make to try to talk to
               Mr. Gridley?



       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019           Page 10 of 15
               [Trooper Ayers]: Well, Mr. Gridley had been arrested on
               another offense through a separate county.


       (Tr. Vol. II at 226.)


[18]   At that point, defense counsel requested to approach the bench and argued he

       had not asked Trooper Ayers where Gridley was found. The State noted the

       question was asked by the defense, that it was “not something that the state

       brought out on Direct[,]” (id. at 227), and Trooper Ayers was only saying

       “literally what happened and was the response to all the defense questions.”

       (Id.) The trial court advised defense counsel to “change your line of

       questioning.” (Id. at 228.) Defense counsel did not further object, request an

       admonishment, or request a mistrial.


[19]   Gridley acknowledges he did not request an admonishment about the testimony

       and did not request a mistrial. Thus, this issue is waived. See Orta v. State, 940

       N.E.2d 370, 377 (Ind. Ct. App. 2011) (issue waived if not presented before trial

       court), trans. denied. Gridley argues, however, the violation was fundamental

       error. Fundamental error is extremely narrow and available only when the

       record reveals a clearly blatant violation of basic and elementary principles,

       where the harm or potential for harm cannot be denied, and when the violation

       is so prejudicial to the rights of the defendant as to make a fair trial impossible.

       Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). Gridley does not meet that

       standard.




       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019         Page 11 of 15
[20]   Gridley argues this violation constitutes fundamental error because “Trooper

       Ayers [was] an experience[d] officer and witness, kn[ew] he was not to make

       any comment on Gridley’s arrest, [and] answered defense counsel’s question

       with information he knew was prejudicial to Gridley.” (Br. of Appellant at 16.)

       Gridley argues, whether intentional or not, the violation “merits a new trial.”

       (Id.)


[21]   Although admission of evidence of prior bad acts is generally error, see Ind.

       Evidence Rule 404(b), when the reference is “fragmentary at best[,]” Schlomer,

       580 N.E.2d at 955, the admission is harmless. Id. at 956. Not only did the

       testimony consist of a single sentence that Gridley had been arrested in another

       county, the statement did not disclose the reason for the arrest, whether charges

       had been filed pursuant to that arrest, or whether the arrest resulted in a

       conviction. Additionally, the statement was elicited by defense counsel, not the

       State. Moreover, the State presented substantial independent evidence of

       Gridley’s guilt. Given the strength of that evidence, any probable persuasive

       effect of Trooper Ayers’ single-sentence response that Gridley had been arrested

       in another county would have been minimal. See Moore v. State, 551 N.E.2d

       459, 461 (Ind. Ct. App. 1990) (when admission was inadvertent, fragmentary,

       and not deliberately elicited by the State, and the evidence against the

       defendant is strong, the trial court does not err in denying a mistrial).




       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019          Page 12 of 15
                                            Closing Statements
[22]   Gridley argues the prosecutor committed misconduct during the State’s closing

       statement. He contends the State’s comments “were an invitation for the jury

       to convict [Gridley] in order to combat the methamphetamine epidemic in

       Southeastern Indiana rather than because Gridley was guilty of a crime.” (Br.

       of Appellant at 18.)


[23]   In reviewing a claim of prosecutorial misconduct, we determine whether

       misconduct occurred and, if so, whether the misconduct placed the defendant in

       a position of grave peril to which he or she would not have otherwise been

       subjected. Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015). The gravity

       of peril is measured by the probable persuasive effect of the misconduct on the

       jury’s decision rather than the degree of impropriety of the conduct. Id. To

       preserve a claim of prosecutorial misconduct, the defendant must request the

       jury be admonished at the time the alleged misconduct occurs, and if further

       relief is needed, move for a mistrial. Id. Failure to do so results in waiver. Id.


[24]   Gridley did not object to the alleged misconduct, did not ask for the jury to be

       admonished, and did not request a mistrial. Thus, this argument is waived.

       Where a prosecutorial misconduct claim has been waived for failure to

       preserve, the defendant must establish not only the grounds for misconduct but

       also that the misconduct resulted in fundamental error, an extremely narrow

       exception. Id.




       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019       Page 13 of 15
[25]   The State’s appeal to a community standard notwithstanding, the State did not

       argue the jury should ignore the evidence; rather, the State outlined the

       evidence it had presented to demonstrate Gridley was guilty of the charges.

       That evidence showed Gridley purchased pseudoephedrine; had gone with

       Davis to Gillman’s; had purchased, through Davis, two items needed to

       manufacture methamphetamine; had told Davis that he wanted to “get high[,]”

       (Tr. Vol. II at 123); and made incriminating statements while talking to his

       mother on the phone while incarcerated.


[26]   In addition, the jury instructions informed the jury the State had the burden of

       proof, Gridley was innocent until proven guilty, and statements made by

       counsel were not evidence. (See App. Vol. II at 153 (Final Instruction No. 7 on

       the presumption of innocence); id. at 154 (Final Instruction No. 8 on the burden

       of proof); id. at 155 (Final Instruction No. 9 on what evidence to consider); id.

       at 157 (Final Instruction No. 11 on using “[n]either sympathy nor prejudice for

       or against either the victim or the defendant [to] influence [findings]”); id. at

       162 (Final Instruction No. 16 that [s]tatements made by attorneys are not

       evidence).)


[27]   In light of the substantial evidence of Gridley’s guilt and the instructions

       provided by the court, Gridley has not demonstrated fundamental error that

       would warrant a new trial. See Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct.

       App. 2011) (any misconduct in prosecutor’s statement cured by court’s general

       instruction), trans. denied.



       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019        Page 14 of 15
                                                 Conclusion
[28]   As the trial court did not abuse its discretion in replacing a sleeping juror during

       the presentation of evidence and Gridley has not demonstrated fundamental

       error, we affirm.


[29]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019       Page 15 of 15
