MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                    Apr 06 2020, 8:23 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brent Porter,                                            April 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1303
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Cook
Appellee-Plaintiff,                                      Crawford, Judge
                                                         Trial Court Cause No.
                                                         49G01-1811-F3-39582



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020                     Page 1 of 12
                               Case Summary and Issues
[1]   Following a jury trial, Brent Porter was convicted of kidnapping committed by

      using a vehicle and kidnapping causing bodily injury, both Level 5 felonies, and

      domestic battery, a Class A misdemeanor. He was sentenced to three years for

      kidnapping committed by using a vehicle, one and one-half years for

      kidnapping causing bodily injury, and one year for domestic battery, all to be

      served concurrently. Porter appeals his convictions, raising two issues for our

      review: 1) whether the trial court abused its discretion when it denied Porter’s

      motion for mistrial following an objectionable statement during trial testimony;

      and 2) whether the entry of judgment of conviction and sentence for both

      counts of kidnapping violate Indiana’s prohibition against double jeopardy.

      Concluding the trial court did not abuse its discretion in denying a mistrial but

      that the two convictions for kidnapping do constitute double jeopardy, we

      affirm in part, reverse in part, and remand.



                            Facts and Procedural History
[2]   Porter and Candace Wright were involved in a relationship and lived together

      as of November 2018. On November 7, Wright decided to end the relationship

      and went to a relative’s house to talk. In the early morning hours of November

      8, she made her way to the apartment of her cousin, Nicki Horton. Wright and

      Horton left the apartment to pick up a friend of Horton’s, with Wright driving

      Horton’s truck. When they returned to Horton’s apartment, Wright saw the

      headlights of a car nearby, but “it didn’t dawn on [her] to know who it was.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 2 of 12
      Transcript, Volume II at 94. All three occupants had to exit the truck through

      the passenger door because the driver’s door was not functional. Horton and

      her friend got out and headed toward the apartment. As Wright exited the

      truck, Porter ran up to her and struck her from behind. Wright explained, “he

      hit me so hard that I fell, and my knee fractured and was out. Pushed all the

      way out.” Id. at 95. The fall also caused her mouth and nose to bleed. Horton

      saw the altercation and yelled at Porter, who told her to shut up. Porter then

      dragged Wright by her hair to his car. Wright was holding on to the doorframe

      because she did not want to get in, but Porter kicked and pushed her into the

      back seat as she tried to resist. Porter drove away, hitting Wright in the face

      with his fist as he drove. Wright was in and out of consciousness until they

      eventually arrived at the apartment they shared. Wright’s left eye was swollen

      shut and she was unable to walk by herself. Porter assisted her up the stairs to

      their apartment and into bed. Horton did not call the police after Porter drove

      away with Wright, but she did call Wright’s daughter to apprise her of what

      had happened.


[3]   While Wright was in bed, “hurtin’ bad[,]” she heard a knock at the door. Id. at

      100. Wright was unable to get out of bed and Porter did not answer, but

      Wright was able to hear the voices of her daughter and another cousin outside

      the apartment. Wright’s daughter called the police when no one came to the

      door and neither Wright nor Porter answered their phone. When police

      arrived, they repeatedly knocked and announced their presence but again Porter

      did not answer, so the police breached the door and entered the apartment.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 3 of 12
      Porter was arrested and Wright was transported to the hospital by ambulance.

      Wright suffered a fracture to her left kneecap.


[4]   The State charged Porter with kidnapping with serious bodily injury, a Level 3

      felony; battery resulting in serious bodily injury, a Level 5 felony; kidnapping

      committed by using a vehicle and kidnapping causing bodily injury, both Level

      5 felonies; and domestic battery as a Class A misdemeanor. With respect to the

      domestic battery charge, the State also alleged that Porter had a prior battery

      conviction which, if proved, would elevate the Class A misdemeanor to a Level

      6 felony. At Porter’s jury trial, Horton testified about what she saw the

      morning of November 8. When asked by the State if she called the police after

      Porter dragged Wright away, Horton said, “No, at the time . . . I was

      intoxicated, and I don’t know exactly what happened between them right there.

      They had altercations every now and then and I –” Id. at 121. Defense counsel

      interrupted and objected on Evidence Rule 404(b) grounds. The trial court

      sustained the objection, but then defense counsel asked to approach the bench

      and informed the court that he would be moving for a mistrial. The court sent

      the jury back to the jury room and heard argument on the motion:


              [Defense counsel]: [T]he objection was to 404B, prior bad act
              evidence. The testimony did come out before the Court made its
              ruling. Since the prior bad acts are not before the jury, it’s also
              more prejudicial than probative in this case. A limiting
              instruction or striking from the record –


              The Court: I’m quite frankly she was talking so fast, I didn’t
              even catch anything that she said.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 4 of 12
        [Defense counsel]: We believe that some of the jurors at least
        may have caught it. And we don’t believe that a limiting
        instruction or striking the record can unring that bell in this case.


        ***


        [The State]: The State’s position that I believe what Miss Horton
        said is (inaudible). But it didn’t go any further than that. I think
        that an admonishment would be sufficient in this case. . . .


        The Court: What was your original question?


        [The State]: My question was, Why didn’t she call the police?


        ***


        [Defense Counsel]: . . . I don’t think [the State’s] question called
        for that [answer]. So, we’re not . . . saying that is the state in any
        way, shape or form. Just the response to that was they have been
        in altercation[s] in the past. And we are concerned that that
        evidence in front of the jury leads them to speculate that there
        have been prior bad acts that my client has participated in.


        The Court: . . . The Court at this time is going to deny your
        request for Mistrial. [F]irst of all the question that was asked did
        not – was not designed to elicit that specific response. And . . .
        she did not complete her answer. So, and she . . . talks fast so
        I’m not sure most of the jurors even caught it. But even those
        that did, I don’t think that it was anything that would prejudice
        [Porter] that much. I am willing to give a – admonish the jury to
        disregard that portion of her response. . . .




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 5 of 12
      Id. at 122-23. When the jury returned to the courtroom, the trial court gave

      them the following admonishment:


              All right, ladies and gentlemen, the Court has sustained the
              Defendant’s objection with regard to that portion of the
              witnesses’ [sic] response where she said they got into altercations
              from time to time. You are to disregard that portion of her
              response. And do not consider it as part of your deliberation. . . .
              That will be stricken from the record.


      Id. at 124.


[5]   The jury found Porter not guilty of kidnapping as a Level 3 felony and battery

      as a Level 5 felony; it found him guilty of the remaining charges. The State

      then dismissed part two of the domestic battery information. The trial court

      entered judgment of conviction for two Level 5 kidnapping convictions and

      domestic battery and sentenced Porter to three years for kidnapping committed

      by using a vehicle, one and one-half years for kidnapping causing bodily injury,

      and one year for domestic battery, all to be served concurrently through

      community corrections on home detention. Porter now appeals.



                                 Discussion and Decision
                                     I. Motion for Mistrial
[6]   Porter contends that the trial court erred in denying his motion for mistrial after

      Horton made a statement referencing previous altercations between Porter and

      Wright in violation of Indiana Evidence Rule 404(b). He claims he suffered


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 6 of 12
      prejudice as a result of the comment that was not cured by the trial court’s

      admonishment because a “significant, serious, and appropriate connotation is

      assigned to the concept of being a domestic batterer [and i]t cannot be known

      how significant, and damning, the inferences drawn [by the jury] were.” Brief

      of Defendant-Appellant at 15.


[7]   The grant or denial of a motion for mistrial rests within the sound discretion of

      the trial court and we therefore review the trial court’s decision only for an

      abuse of discretion. Brittain v. State, 68 N.E.3d 611, 619 (Ind. Ct. App. 2017),

      trans. denied. The trial court is entitled to great deference on appeal because the

      trial court is in the best position to evaluate the relevant circumstances of a

      given event and its probable impact on the jury. Id. at 620. To prevail on

      appeal from the denial of a motion for mistrial, a defendant must demonstrate

      that the statement in question was so prejudicial that he was placed in a

      position of grave peril. Id. The gravity of peril is measured by the probable

      persuasive effect of the statement on the jury. Smith v. State, 140 N.E.3d 363,

      373 (Ind. Ct. App. 2020). Granting a mistrial “is an extreme remedy 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.


[8]   Evidence Rule 404(b) provides, “Evidence of a crime, wrong, or other act is not

      admissible to prove a person’s character in order to show that on a particular

      occasion the person acted in accordance with the character.” The purpose of

      Rule 404(b) is “to prevent the jury from indulging in the ‘forbidden inference’—

      that a defendant must be guilty of the charged crime because, on other

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 7 of 12
      occasions, he acted badly.” Fairbanks v. State, 119 N.E.3d 564, 565 (Ind. 2019).

      Porter contends Horton’s statement that he and Wright “had altercations every

      now and then” is prior bad act evidence that subjected him to grave peril. Tr.,

      Vol. II at 121. We disagree.


[9]   In Lucio v. State, a witness was asked how long the defendant and a third party

      had been acquainted. The witness replied, “As far as I know they had met in

      Boone County jail.” 907 N.E.2d 1008, 1009 (Ind. 2009). Defense counsel

      immediately moved for a mistrial, arguing the evidence was highly prejudicial.

      The trial court found the violation was unintentional and denied the mistrial

      but struck the answer and instructed the jury, “You must not consider that

      evidence as to any matter before you for consideration. In fact, such matter is

      to be treated as though you have never heard of it.” Id. at 1010. The jury found

      the defendant guilty of two counts of murder and one count of conspiracy to

      commit murder. The defendant appealed, raising the sole issue of whether the

      trial court erred in denying his request for a mistrial. Our supreme court noted

      that “everyone agrees” the witness’s testimony was improper. Id. However,

      because the trial court immediately and clearly told the jury not to consider the

      evidence, because there is a strong presumption that juries follow a court’s

      instructions and that an admonition cures any error, and because the statement

      “was fleeting, inadvertent, and only a minor part of the evidence against the

      defendant[,]” the court held the trial court did not abuse its discretion. Id. at

      1011.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 8 of 12
[10]   Here, the implication of the statement in question is much less direct than that

       of the statement in Lucio. That Porter and Wright had been involved in

       “altercations” in the past does not necessarily mean that Porter is a bad actor,

       and the possible prejudice from such a vague statement is substantially less than

       from the direct statement in Lucio which was still not prejudicial enough to

       warrant a mistrial. See Greenlee v. State, 655 N.E.2d 488, 489-91 (Ind. 1995)

       (holding mistrial not warranted where trial court instructed jury to disregard

       witness’s testimony that he was familiar with the defendant because he “had

       arrested him in the past”). In addition, all parties here agreed that Horton’s

       statement was not elicited purposely – both the trial court and Porter’s counsel

       noted that the State’s question did not beg the answer. Moreover, the trial court

       noted that because the witness spoke quickly, the court barely registered her

       answer and it was likely the same for the jury. Finally, the trial court

       immediately gave a clear instruction to the jury that it should not consider the

       statement. When a trial court adequately admonishes the jury, such

       admonishment is presumed to cure any error that may have occurred. Cherry v.

       State, 971 N.E.2d 726, 733 (Ind. Ct. App. 2012), trans. denied.


[11]   Wright’s testimony alone that Porter struck her and took her from one place to

       another when she did not wish to go was substantial. In light of that evidence,

       it is likely the jury would have returned guilty verdicts regardless of Horton’s

       statement. Horton’s inadvertent mistake in referencing prior altercations was

       brief, was not used by the State thereafter in any manner, and was presumably

       cured by the trial court’s admonishment to the jury. The trial court did not


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 9 of 12
       abuse its discretion in denying the extreme remedy of a mistrial under these

       circumstances.


                                        II. Double Jeopardy
[12]   Porter also contends his convictions and sentences for kidnapping committed

       by using a vehicle and kidnapping causing bodily injury cannot both stand, as

       the two convictions violate Indiana’s prohibition on double jeopardy. The State

       concedes the two convictions are based upon the same act. See Brief of

       Appellee at 8.


[13]   Both counts of kidnapping alleged that Porter knowingly removed Wright by

       force or threat of force from one place to another, that being from an area near

       Horton’s apartment to Porter’s residence. See Appellant’s Appendix, Volume II

       at 22. The additional elements of using a car and causing bodily injury are

       alternative means by which the basic charge of kidnapping, a Level 6 felony,

       can be elevated to a Level 5 felony. Ind. Code § 35-42-3-2(a) (basic elements of

       kidnapping); -2(b)(1) (elements that increase the seriousness of the basic crime).

       But the act of kidnapping itself is simply the removal by force of a person from

       one place to another. Conviction and punishment for a crime which consists of

       the very same act as another crime for which the defendant has been convicted

       and punished is a double jeopardy violation. Guyton v. State, 771 N.E.2d 1141,

       1143 (Ind. 2002).


[14]   When two convictions are found to violate the principles of double jeopardy,

       we may remedy the violation by reducing either conviction to a less serious

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 10 of 12
form of the same offense if doing so will eliminate the violation. Richardson v.

State, 717 N.E.2d 32, 54 (Ind. 1999). If it will not, then the conviction with less

severe penal consequences should be vacated. Id. Even though there is a less

serious form of kidnapping, given the facts of this case, reducing either

conviction to a Level 6 felony would not remedy the double jeopardy violation.

Therefore, one conviction must be vacated. However, both crimes are Level 5

felonies and therefore, of equal severity when considering the class of crime. In

such case, the severity of the penal consequences can be determined by the

length of the sentence imposed. Moala v. State, 969 N.E.2d 1061, 1066 (Ind. Ct.

App. 2012); see also Richardson, 717 N.E.2d at 54 (in remedying a double

jeopardy violation, the reviewing court should be “mindful of the penal

consequences that the trial court found appropriate.”) Because the trial court

sentenced Porter to three years for kidnapping by using a vehicle and only one

and one-half years for kidnapping causing bodily injury, we remand for the trial

court to vacate Porter’s conviction for kidnapping causing bodily injury. As a

practical matter, because the trial court ordered all of Porter’s sentences to be

served concurrently, the length of his sentence will not change. 1




1
  Although not raised by either party, we note that the sentencing order states that Porter was convicted of
domestic battery as a Level 6 felony. However, the jury found him guilty of domestic battery as a Class A
misdemeanor, and the State dismissed the second part of the domestic battery information that could have
elevated the crime to a Level 6 felony. See Tr., Vol. II at 177 (the State confirming at the sentencing hearing
that it did not proceed on part two of the information for domestic battery). Because the trial court sentenced
Porter within the bounds of a Class A misdemeanor conviction, see Ind. Code § 35-50-3-2 (stating a person
who commits a Class A misdemeanor shall be imprisoned for a term of not more than one year), we assume
this is a scrivener’s error and we instruct the trial court on remand to amend the sentencing order to reflect
the appropriate conviction.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020                    Page 11 of 12
                                               Conclusion
[15]   The trial court did not abuse its discretion in denying Porter’s motion for

       mistrial based on an inadvertent and unsolicited statement by a witness.

       However, Porter’s convictions for both kidnapping by using a vehicle and

       kidnapping causing bodily injury violate Indiana’s prohibition against double

       jeopardy as both convictions are based on the same act. We therefore remand

       to the trial court to vacate Porter’s conviction and sentence for kidnapping

       causing bodily injury and issue a new sentencing order. In all other respects,

       the judgment of the trial court is affirmed.


[16]   Affirmed in part, reversed in part, and remanded.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1303 | April 6, 2020   Page 12 of 12
