MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Apr 12 2017, 9:18 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Evan K. Hammond                                          Curtis T. Hill, Jr.
Grant County Public Defender                             Attorney General of Indiana
Marion, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melanie Marie Thinnes,                                   April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1606-CR-1305
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D01-1410-FB-48



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017           Page 1 of 11
                                        Statement of the Case
[1]   Melanie Thinnes (“Thinnes”) appeals her convictions by jury of Class B felony

      causing death when operating a motor vehicle with a schedule I or II controlled

      substance in the blood;1 Class C felony criminal recklessness resulting in serious

      bodily injury;2 Class D felony causing bodily injury while operating a motor

      vehicle while intoxicated with a Schedule I or II controlled substance;3 two

      counts of Class D felony possession of a controlled substance; 4 and Class A

      misdemeanor possession of marijuana,5 as well as the sentence imposed

      thereon. Thinnes specifically argues that the trial court abused its discretion in

      denying her motion for a mistrial and in sentencing her. Concluding that the

      witness’ testimony did not place Thinnes in a position of grave peril and that

      Thinnes’ sentence was not against the logic and effect of the facts and

      circumstances before the trial court, we affirm the trial court’s judgment and

      sentence.


[2]   We affirm.




      1
          IND. CODE § 9-30-5-5
      2
          IND. CODE § 35-42-2-2.
      3
          I.C. § 9-30-5-4.
      4
          I.C. § 35-48-4-7.
      5
          I.C. § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 2 of 11
                                                     Issues
              1. Whether the trial court abused its discretion in denying
              Thinnes’ motion for a mistrial.


              2. Whether the trial court abused its discretion in sentencing her.


                                                     Facts
[3]   At approximately 7:30 a.m. on June 27, 2014, Robert Sater (“Sater”) was

      driving northbound on 400 East near Gas City when he noticed that twenty-

      two-year-old Thinnes, who was approaching him in the southbound lane in a

      Jeep, appeared to be falling asleep. As Thinnes’ Jeep crossed the centerline into

      his lane, Sater swerved and drove off the road into the front yard of a nearby

      home. Chelsea Blackburn (“Blackburn”) and her boyfriend, Derek Comer

      (“Comer”), had been driving a short distance behind Sater. Blackburn was

      driving, and Comer was in the front passenger seat. After Sater swerved off the

      road, he looked up at his rearview mirror and saw Thinnes’ Jeep collide with

      Blackburn’s van. Comer, whose legs were crushed, was unable to get out of the

      van. Rescue workers were able to extricate him; however, he died at the scene.

      Blackburn was taken to the hospital with a broken ankle and dislocated wrist.


[4]   The impact of the collision sent Thinnes’ Jeep into a culvert at the side of the

      road. Sater, who smelled gasoline in the area of the Jeep, yelled at Thinnes to

      get out of the car. Thinnes crawled out of the Jeep’s window and pulled herself

      up to the roof of the car. She was crying and stated that this crash was just like

      a previous crash in which she had been involved.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 3 of 11
[5]   Thinnes was taken to the hospital for a blood draw, and the police interviewed

      her later that day. During the interview, Thinnes mentioned the prior crash in

      which she had been involved. Someone had died in the crash, but no charges

      had ever been filed against Thinnes. Also during the interview, Thinnes

      explained that she had been up all night with a friend the previous night and

      had taken an Adderall at approximately 3:00 a.m. to help her stay awake.

      Thinnes did not have a prescription for Adderall. She also admitted that she

      had smoked marijuana at some point in the recent past. Thinnes’ blood tests

      were positive for THC and THC carboxy, the active ingredient in marijuana

      and its metabolite, and amphetamines. A search of her car revealed a partially

      burned marijuana cigarette as well as an amphetamine tablet and a Xanax

      tablet together in a small plastic bag.


[6]   Four months after the accident in October 2016, the State charged Thinnes

      with: (1) Class B felony causing death when operating a motor vehicle with a

      schedule I or II controlled substance in the blood for causing Comer’s death; (2)

      Class C felony criminal recklessness resulting in serious bodily injury for

      injuring Blackburn’s ankle and/or wrist; (3) Class D felony causing serious

      bodily injury when operating a vehicle while intoxicated with a schedule I or II

      controlled substance for injuring Blackburn’s ankle and/or wrist; (4-5) two

      counts of Class D felony possession of a controlled substance for possessing the

      amphetamine and Xanax tablets; and (6) Class A misdemeanor possession of

      marijuana for possessing the partially burned marijuana cigarette.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 4 of 11
[7]   Before trial, Thinnes filed a motion in limine wherein she asked the trial court

      to order counsel and all witnesses to refrain from mentioning her prior car

      accident. The trial court granted the motion. In order to comply with the trial

      court’s order, the State told its first witness, Sater, not to mention the prior

      accident. However, during direct examination, while Sater was describing

      Thinnes’ appearance and actions immediately after the accident, Sater

      mentioned that Thinnes said, “this is the same thing that happened . . . .” (Tr.

      60). The State promptly interrupted Sater and clarified that it only wanted to

      know about Thinnes’ appearance after the accident. Outside the presence of the

      jury, Thinnes moved for a mistrial based upon the violation of the motion in

      limine. Specifically, Thinnes argued that “the words ‘this same thing

      happened,’ . . . would suggest to the jury that . . . she had a significant collision

      before. . . .” (Tr. 63). The State responded that Sater never mentioned a crash,

      and even if the jury made an inference that there as a prior crash, Sater never

      mentioned that someone else had died. The trial court took the matter under

      advisement, and after a short recess, denied Thinnes’ motion. The trial court

      specifically explained that there “was no elaboration on ‘thing,’ or even if it

      [had] happened to . . . [Thinnes].” (Tr. 66). At Thinnes’ request, the trial court

      admonished the jury to disregard the last answer given by the witness.


[8]   The evidence presented at trial revealed that Blackburn, who was Thinnes’

      cousin, had had plates and screws placed in her ankle and that her ankle was

      still swollen two years after the accident. In addition, medical testimony

      revealed that a compound fracture in Comer’s thigh bone tore the blood vessels


      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 5 of 11
       behind his knee and caused him to bleed to death. Specifically, the Grant

       County Coroner testified that Comer “bled out from injuries that he received

       during the collision.” (Tr. 121). The jury convicted Thinnes of all charges.


[9]    At the sentencing hearing, Thinnes testified that she had an almost one-year-old

       son and that she took care of her father for four to eight hours per day. Thinnes

       also testified that she had completed substance abuse treatment in Florida after

       the accident. According to Thinnes, the treatment program had changed her

       life. However, she had not followed the treatment program recommendations

       after she returned to Indiana.


[10]   At the end of the sentencing hearing, the trial court pointed out that in her

       police interview shortly after the accident, Thinnes was “haughty, disdainful,

       offhanded, and [had no concern for [anything that was] important or serious.”

       (Tr. 396). The trial court further doubted that Thinnes had changed because

       she had not followed through with recommendations after being discharged

       from the Florida treatment program. The trial court explained that if it could

       pick a sentence “based upon emotion only and not the law,” it would give

       Thinnes the maximum sentence because her actions resulted in the death of

       another human being. (Tr. 397). However, the trial court pointed out that it

       would not so sentence her because her actions were not the worst of the worst.

       Specifically, the trial court explained that it found the following mitigating

       circumstances: (1) Thinnes did not have a juvenile or criminal history; (2) a

       long period of imprisonment would be a significant hardship on her young child

       and father; and (3) Thinnes was young and more likely to learn from her bad

       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 6 of 11
       choices. The court further found as an aggravating circumstance that the

       imposition of a sentence less than the advisory sentence would depreciate the

       seriousness of the crimes.


[11]   The trial court also explained that because of the aggravating circumstance, and

       despite the mitigating circumstances, the court would sentence Thinnes to the

       advisory sentence on each count. The court therefore sentenced Thinnes as

       follows: (1) ten years with two years suspended for the Class B felony

       conviction; (2) four years for the Class C felony conviction; (3) one and one-half

       years for each of the three Class D felony convictions; and (4) one year for the

       Class A misdemeanor conviction. The trial court further ordered all of the

       sentences to run concurrently to each other for a total executed sentence of

       eight (8) years in the Department of Correction. In addition, the trial court

       noted that it would recommend that Thinnes be sentenced to a “purposeful

       incarceration.” (Tr. 399). The trial court explained that this was a program in

       the Department of Correction that would provide her with addiction and

       mental health treatment. The trial court further explained that it would

       consider modifying her sentence once she had successfully completed the

       program and been incarcerated for six years. Thinnes now appeals her

       convictions and sentence.


                                                   Decision
[12]   Thinnes argues that the trial court abused its discretion in denying her motion

       for a mistrial and in sentencing her. We address each of her contentions in

       turn.
       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 7 of 11
       1. Denial of Mistrial


[13]   Thinnes first argues that the trial court abused its discretion by denying her

       motion for a mistrial. The grant or denial of a mistrial lies within the sound

       discretion of the trial court. Brittain v. State, 68 N.E.3d 611, 619 (Ind. Ct. App.

       2017). We reverse a trial court only when an abuse of discretion is clearly

       shown. Id. We afford the trial court such deference on appeal because the trial

       court is in the best position to evaluate the relevant circumstances of an event

       and its impact on the jury. Id. at 620. The declaration of a mistrial is an

       extreme action that is warranted only when no other action can be expected to

       remedy the situation. Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015),

       trans. denied.


[14]   To prevail on appeal from the denial of a motion for a mistrial, the appellant

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

       and inflammatory that she was placed in a position of grave peril to which she

       should not have been subjected. Brittain, 68 N.E.3d at 620. 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.


[15]   Even if evidence of uncharged misconduct is heard by the jury, a prompt

       admonishment to the jury to disregard the improper testimony is usually

       enough to support the denial of a motion for mistrial. Greenlee v. State, 655

       N.E.2d 488, 490 (Ind. 1995). To determine if testimony of prior uncharged


       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 8 of 11
       misconduct should warrant a new trial, the circumstances must be analyzed as

       to whether the evidence was intentionally injected or came in inadvertently and

       as to what degree the defendant was subjected to improper speculation by the

       jury. Id.


[16]   At trial, Sater testified that after the accident, while Thinnes was sitting on the

       roof of her car in the gulley, she stated, “this is the same thing that happened . .

       . .” (Tr. 60). The trial court immediately admonished the jury to disregard the

       last answer given by Sater. This admonishment, together with the strong

       presumption that juries follow courts’ instructions and that an admonition cures

       any error, supports the trial court’s denial of Thinnes’ motion. See Lucio v. State,

       907 N.E.2d 1008, 1011 (Ind. 2009).


[17]   Further, the parties agree that this was inadvertent testimony by a civilian

       witness, that no other witness provided any evidence regarding Thinnes’

       statement during the three-day trial, and that the State made absolutely no

       reference to this statement in its closing statement to the jury or at any other

       time during the trial. We agree with the State that the “statement was isolated,

       brief, and vague, and that the State did not emphasize or exploit it in any way.”

       (State’s Br. 10). Based on these facts and circumstances Thinnes was not placed

       in a position of grave peril, and the trial court did abuse its discretion in denying

       her motion for a mistrial. See Lucio, 907 N.E.2d at 1011.


       2. Sentence




       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 9 of 11
[18]   Thinnes also argues that the trial court abused its discretion in sentencing her. 6

       Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances before the court or the reasonable,

       probable, and actual deductions to be drawn therefrom. Id. at 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record, or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[19]   Thinnes alleges none of the possible abuses of discretion that are set forth in

       Anglemyer. Instead she argues that she “should have been sentenced to the

       minimum sentence based on the court identified mitigating factors.” (Thinnes’

       Br. 15). According to Thinnes, “[i]t is clear from the record that more

       mitigating factors were identified; however, Thinnes received a sentence above



       6
[1]      We note that despite stating the issue in her appellate brief as whether her sentence is inappropriate,
       Thinnes does not cite to Indiana Appellate Rule 7(B), which provides that this Court may revise a sentence
       authorized by statute if we find that the sentence is inappropriate in light of the nature of the offense and the
       character of the offender. In addition, Thinnes presents no argument whatsoever addressing either the nature
       of her offense or her character. Thinnes has, therefore, waived any argument that her sentence is
       inappropriate. See Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).




       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017              Page 10 of 11
       the minimum.” (Thinnes’ Br. 15). This is essentially an argument that the trial

       court improperly weighed the aggravating and mitigating factors. However,

       Anglemyer makes clear that, when imposing a sentence, a trial court “no longer

       has any obligation to ‘weigh’ aggravating and mitigating factors against each

       other” and thus “a trial court can not now be said to have abused its discretion

       in failing to ‘properly weigh’ such factors.” Id. at 491. Thinnes’ argument

       therefore fails. The trial court did not abuse its discretion in sentencing her.


[20]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1305 | April 12, 2017   Page 11 of 11
