MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 31 2018, 7:12 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James E. Saylor,                                         August 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A05-1712-CR-2921
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffery Sharp,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         39C01-0607-FA-75



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018          Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, James E. Saylor (Saylor), appeals the trial court’s

      adjudication as a habitual offender upon remand and following a jury trial.


[2]   We affirm.




                                                   ISSUES
[3]   Saylor present two issues on appeal, which we restate as follows:


          (1) Whether the trial court erred by denying his motion to dismiss the

              habitual charges when the charges were procedurally and substantially

              defective; and

          (2) Whether the trial court abused its discretion when it denied Saylor’s

              motion for a mistrial following voir dire.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 4, 2007, Saylor was convicted of two Counts of child molesting,

      intimidation, and vicarious sexual gratification. He subsequently pled guilty to

      being a habitual offender, and was sentenced to 138 years. On direct appeal,

      Saylor argued that the trial court improperly allowed the State to amend the

      charging information, that the trial court erroneously admitted evidence, and

      that his sentence was inappropriate. We affirmed his conviction and sentence

      on September 17, 2008.



      Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 2 of 9
[5]   After the post-conviction court denied Saylor’s 2014 petition for post-conviction

      relief, he appealed. On appeal, he argued that his trial counsel was ineffective

      and that his guilty plea to the habitual offender charge was invalid because he

      did not personally waive his right to a jury trial. On May 23, 2016, this court

      affirmed in part, and remanded for a new trial on the habitual offender charge.


[6]   On September 26, 2017, the State tried Saylor during a jury trial on the habitual

      offender charge. At the close of the evidence, the jury found him to be a

      habitual offender. On November 3, 2017, the trial court held a sentencing

      hearing and sentenced Saylor to thirty years, consecutive to his 2007 sentence,

      for an aggregate sentence of 138 years.


[7]   Saylor now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                             I. Motion to Dismiss


[8]   Saylor contends that the trial court erred in denying his motion to dismiss and

      now requests this court to dismiss the charges because his initial arrest and

      subsequent criminal charges lacked sufficient probable cause. To support his

      claim, he presents us with three allegations: (1) “the record contains evidence

      of document tampering on the face of the probable cause affidavit(s);” (2) “the

      affidavit of probable cause, even if supplemented by police reports, was

      statutorily insufficient to allow for a judicial determination of probable cause;”

      and (3) he did not receive a probable cause hearing and therefore “the trial court



      Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 3 of 9
       was without substantive basis to find probable cause to sustain the charges.”

       (Appellant’s Br. pp. 14, 15).


[9]    Saylor previously pursued a direct appeal and a post-conviction appeal. Thus,

       “[s]ubsequent collateral charges must be based on grounds enumerated in Post-

       Conviction Rule 1.” Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). “If an

       issue was known and available on direct appeal, but not raised, it is

       procedurally defaulted as a basis for relief in subsequent proceedings.” Id.

       Here, Saylor’s claim of a procedurally defective probable cause underlying his

       charges was known and available on direct appeal and should have been raised

       at that point in time. His free-standing claim of error is now no longer available

       for our review.


[10]   Moreover, we have repeatedly held that “lack of probable cause is not grounds

       for dismissing a charging information.” Flowers v. State, 738 N.E. 2d 1051, 1055

       (Ind. 2000) (quoting Hicks v. State, 544 N.2d 500, 505 (Ind. 1989)). As observed

       by our supreme court:


               The probable cause affidavit is not the means by which the
               accused is charged with a crime, but is a means of satisfying the
               constitutional and statutory requirements that the pre-trial
               detention of the accused to face the charge be based upon a
               determination, by a neutral and detached magistrate, that
               probable cause exists to believe that the accused committed the
               crime.


       Gilliam v. State, 383 N.E.2d 297, 303 (Ind. 1978). Therefore, even if Saylor is

       correct in his contention that the probable cause affidavit was deficient then his

       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 4 of 9
       only remedy would have been (if argued before the trial court or on direct

       appeal) a release from pre-trial detention predicated upon an illegal arrest.

       Flowers, 738 N.E.2d at 1055.


                                             II. Motion for Mistrial


[11]   Next, Saylor contends that the trial court abused its discretion by denying his

       motion for mistrial at the conclusion of voir dire due to possibly tainted

       prospective jurors.


[12]   The trial court is in the best position to assess the impact of a particular event

       upon the jury. Wilson v. State, 865 N.E.2d 1024, 1027 (Ind. Ct. App. 2007).

       Thus, the decision of whether to grant or deny a motion for mistrial is

       committed to the sound discretion of the trial court and will be reversed only

       upon an abuse of that discretion. Id.


[13]   During voir dire, the trial court explained to the venire:


               The State has alleged that [Saylor] is a habitual offender. He was
               convicted at trial of two [C]ounts of Child Molesting, a [C]lass A
               felony; Vicarious Sexual Gratification, a [C]lass B felony; and
               Intimidation, a [C]lass D felony. We will not get into the facts of
               those convictions. Those issues were decided in a separate trial.
               We are here today for the sole and limited purpose for you to
               decide if [Saylor] is a habitual offender.


       (Transcript, Vol. II, p. 5). Some prospective jurors on the third panel were

       confused about the purpose of the new trial. One juror opined, “All they’d

       have to do is just go back and see like who – what adjudicated the case or – and

       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 5 of 9
       see how many convictions he has and wham, bam, he’s convicted and uh – why

       even have another trial and – it seems kind of a waste.” (Tr. Vol. II, p. 20). A

       second juror reflected:


               Well, he – it’s been stated he’s already had some felonies so uh –
               I mean if he’s already had so many then uh – why go to the
               trouble of – of like – why not is it not set in stone? Why does it
               have to have a judge to uh – you know, like to give him time for
               it?


       (Tr. Vol. II, pp. 31-32). And a third prospective juror questioned, “I thought uh

       – the Judge said that he already had felonies for DUI’s and . . . and I thought

       that’s what he said at the beginning.” (Tr. Vol. II, p. 32).


[14]   In response, Saylor’s counsel explained


               [T]he Judge, what he said, what he was telling you at the
               beginning of the case, and this is really, really important is he
               was telling you what the State is alleging, the State is accusing
               [Saylor] of. The Judge has not made a predetermination, and
               this is – this [is], frankly, really, really important. The Judge has
               not made a pre-determination about whether or not [Saylor] has
               prior felony convictions. What he said at the beginning, and –
               and – it’s confusing, right, because you guys show up. You have
               no idea what this case is about or what the situation is about, but
               what he was telling you was [Saylor] is here. He has been
               charged with being a habitual. The State is alleging that he was
               convicted in this case and that he has at least two prior felony
               convictions. That’s what the Judge said at the beginning. Does
               that help you understand what he was saying?




       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 6 of 9
       (Tr. Vol. II, p. 33). Saylor’s counsel convinced every panel member, except

       one, who stated, “Well, couldn’t the State just whip out the paperwork and

       show - . . . [i]t looks pretty cut and dry, but I’d have to I guess I’d have to see

       the – whatever it is they have, but it don’t look good[.]” (Tr. Vol. II, pp. 36,

       37). After a short colloquy between Saylor’s counsel and the juror, the trial

       judge removed the remaining prospective jurors from the courtroom. Although

       the trial court initially attempted to clarify the proceedings to the juror, the trial

       court excused her for cause. When the panel of prospective jurors returned,

       Saylor’s counsel asked if there were more questions—there were none.


[15]   Once the jury was selected, Saylor moved for a mistrial, arguing


               Your honor, we believe that the [c]ourt has inadvertently invaded
               the province of the jury, but nonetheless has created a situation
               where the jury has received at least an improper view of the facts
               and the law and had prejudged or believes the [c]ourt has
               prejudged the case, and as a result we are requesting a mistrial.


       (Tr. Vol. II, p. 43-44). On appeal, Saylor claims that “the prospective jurors’

       comments were gross misconduct and probably harmed Saylor’s ability to

       obtain a fair trial and fundamentally compromised the appearance of juror

       neutrality.” (Appellant’s Br. p. 17).


[16]   In Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2017), our supreme court explained

       the applicable burden of proof for a successful motion for mistrial in cases of

       suspected jury taint as follows:




       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 7 of 9
               Defendants seeking a mistrial for suspected jury taint are entitled
               to the presumption of prejudice only after making two showings,
               by a preponderance of the evidence: (1) extra-judicial contact or
               communications between jurors and unauthorized persons
               occurred, and (2) the contact or communications pertained to the
               matter before the jury. The burden then shifts to the State to
               rebut this presumption of prejudice by showing that any contact
               or communications were harmless. If the State does not rebut
               the presumption, the trial court must grant a new trial. On the
               other hand, if a defendant fails to make the initial two-part
               showing, the presumption does not apply. Instead, the trial court
               must apply the probable harm standard for juror misconduct,
               granting a new trial only if the misconduct is ‘gross and probably
               harmed’ the defendant.


       Because Saylor cannot establish that extra-judicial contact or unauthorized

       communications occurred, the presumption of prejudice does not apply and we

       apply the probable harm standard.


[17]   Considering the case at hand in light of the probable harm standard, we

       conclude that the trial court properly dismissed Saylor’s motion for mistrial.

       Each juror voiced his or her confusion and concern about the proceedings and

       sought clarification from either the parties or the trial court. They asked

       legitimate questions to clear their misunderstanding and Saylor’s counsel

       elaborated on and properly explained the legal mechanism of a habitual

       offender charge. We cannot find that the jury was tainted.


                                             CONCLUSION
[18]   Based on the foregoing, we hold that the trial court properly denied Saylor’s

       motion to dismiss and his motion for a mistrial.

       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 8 of 9
[19]   Affirmed.


[20]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 39A05-1712-CR-2921 | August 31, 2018   Page 9 of 9
