                                                                                  FILED
MEMORANDUM DECISION                                                          Mar 21 2016, 8:17 am

                                                                                  CLERK
Pursuant to Ind. Appellate Rule 65(D), this                                   Indiana Supreme Court
                                                                                 Court of Appeals
Memorandum Decision shall not be regarded as                                       and Tax Court

precedent or cited before any 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
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Kulon N. Lewis, Jr.,                                     March 21, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1508-CR-1140
        v.                                               Appeal from the Allen Superior
                                                         Court.
                                                         The Honorable Frances C. Gull,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 02D06-1409-F1-1




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016            Page 1 of 11
                                                                                                       1
[1]   Kulon Lewis, Jr. appeals his conviction of attempted murder, a Level 1 felony ,

      and the sentencing enhancement for using a firearm in the commission of an
                   2
      offense. We affirm.


[2]   Lewis raises two issues for our review, which we restate as:

                 1. Whether the trial court’s admission of 404(b) testimony at
                    trial amounted to fundamental error.
                 2. Whether the trial court erred by denying Lewis’ motion for
                    mistrial.
[3]   On September 4, 2014, Dytrell Allen was loading items into a car outside his

      girlfriend’s grandmother’s house in Fort Wayne when he was shot multiple

      times. As a result of this incident, Allen is now confined to a wheelchair.

      Lewis and Trayshaun Pernell were charged with firing the shots that injured

      Allen. Prior to trial, the State filed a Notice of Intent to Use 404(b) Evidence,

      upon which the trial court held a hearing. At the hearing, the State indicated its

      desire to present testimony at trial regarding three prior incidents involving

      Lewis and Allen. The State alleged several purposes for the testimony other

      than to show Lewis’ propensity to commit the acts charged in this case, and

      Lewis’ counsel objected to the admission of the testimony. The trial court ruled

      that the testimony would be allowed at trial, and the State and Lewis’ counsel




      1
          Ind. Code §§ 35-41-5-1 (2014), 35-42-1-1 (2014).
      2
          Ind. Code § 35-50-2-11 (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 2 of 11
      agreed that Lewis’ counsel could present evidence of the disposition of any legal

      action taken as a result of the three incidents.


[4]   Following trial and during deliberations, the jurors were found to be consulting

      a map of Fort Wayne streets that one of the jurors had brought with her. At the

      direction of the trial judge, the bailiff removed the map from the jury room.

      Counsel and the trial judge reviewed the map, noting that five areas had been

      circled. Lewis moved for a mistrial. The court questioned and admonished the

      jury and then denied Lewis’ motion for mistrial. This appeal ensued.


                                   1. Admission of 404(b) Evidence
[5]   Lewis first contends that the trial court erred in the admission of the testimony

      regarding the three prior incidents involving him and Allen. Although Lewis

      objected to admission of the testimony at the pre-trial hearing, he failed to lodge

      an objection when the testimony was presented at trial. Thus, Lewis’ claim of
                            3
      error is waived. See Brown v. State, 929 N.E.2d 204 (Ind. 2010) (to preserve

      challenge to admissibility of evidence for appeal, defendant must make




      3
        We further note that although Lewis objected to the testimony at the 404(b) hearing, he never argued that
      the testimony did not fulfill the 404(b) purposes as proffered by the State. Rather, he objected to admission of
      the testimony on grounds of lack of indicia of reliability and prejudicial effect. See Tr. 404(b) Hrg. pp. 11-13.
      Thus, his objection was not based on Evidence Rule 404 but was instead based on foundational aspects and
      Evidence Rule 403, which allows the court to exclude relevant evidence if its probative value is substantially
      outweighed by a danger of unfair prejudice. See Halliburton v. State, 1 N.E.3d 670 (Ind. 2013) (determining
      that defendant waived error by objecting on one ground at trial and arguing different ground on appeal where
      he argued on appeal improper admission of evidence based upon Rule 404(b) and had objected at trial based
      on Rule 403 with no claim that evidence did not fit Rule 404(b) exceptions or that evidence was bad
      character evidence prohibited by Rule 404(b)).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016               Page 3 of 11
      contemporaneous objection when evidence is introduced at trial). To avoid

      waiver, Lewis claims that admission of the testimony constitutes fundamental

      error. The fundamental error doctrine is extremely narrow and applies only

      when the error amounts to a blatant violation of basic principles, the harm or

      potential for harm is substantial, and the resulting error denies the defendant

      fundamental due process. Lehman v. State, 926 N.E.2d 35 (Ind. Ct. App. 2010),

      trans. denied. This doctrine is available only in egregious circumstances. Brown,

      929 N.E.2d 204.


[6]   Lewis argues that admission of the testimony was fundamental error because it

      amounts to improper character evidence prohibited by Indiana Evidence Rule

      404(b). The Rule 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.
      Evid. R. 404(b)(1). This rule is designed to prevent the jury from assessing a

      defendant’s present guilt on the basis of his past propensities — the “forbidden

      inference.” Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans.

      denied. Such evidence, however, may be admitted to prove “motive,

      opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

      or lack of accident.” Evid. R. 404(b)(2). This list of permissible purposes is

      illustrative but not exhaustive. Freed v. State, 954 N.E.2d 526 (Ind. Ct. App.

      2011).




      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 4 of 11
[7]   In assessing the admissibility of 404(b) evidence, the court must: (1) determine

      that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue

      other than the defendant’s propensity to commit the charged act; and (2)

      balance the probative value of the evidence against its prejudicial effect

      pursuant to Evidence Rule 403. Bishop v. State, 40 N.E.3d 935 (Ind. Ct. App.

      2015), trans. denied. Rule 403 provides, in part, that relevant evidence may be

      excluded if its probative value is substantially outweighed by the danger of

      unfair prejudice.


[8]   The testimony at issue set forth the following events:


          (1) On July 13, 2013, Allen and Lewis were both at Cancun, a nightclub in

              Fort Wayne. They were involved in a verbal encounter inside the

              nightclub where Lewis threatened Allen. Both men were thrown out of

              the club, and a physical encounter occurred between the two. Then as

              Allen walked to his car, Lewis fired shots at him from a vehicle. Police

              officers pursued the vehicle and an individual who exited the car. The

              individual was apprehended and identified as Lewis. Officers recovered

              a handgun from Lewis’ seat in the vehicle, and shell casings found in the

              area were matched to this gun.


          (2) Some time between July 13, 2013 and July 26, 2014, Allen encountered

              Lewis at a gas station in Fort Wayne. When Allen exited the gas station

              mart, Lewis was standing by a car waving a gun at him. Allen did not

              report the incident to the police.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 5 of 11
          (3) On July 26, 2014, Allen was walking near Eden Green apartments in

              Fort Wayne. He heard his name yelled and turned to see Lewis hanging

              out of a car window shooting at him. Allen was hit in his side by a

              bullet, and he called his father to take him to the hospital. Allen

              identified Lewis as the shooter to police.


      At the hearing on the State’s Notice of Intent to Use 404(b) Evidence, the State

      argued and the trial court found that the evidence was relevant to motive,

      intent, identity, defendant’s state of mind, and the relationship of the parties.

      Tr. 404(b) Hrg. pp. 9, 16. The court further determined that although the

      evidence was prejudicial, the probative value of the evidence was not

      substantially outweighed by the prejudicial impact. Id. at 16.


[9]   The State may offer evidence of motive to prove that the act was committed, to

      prove the identity of the actor, or to prove the requisite mental state. Embry v.

      State, 923 N.E.2d 1 (Ind. Ct. App. 2010), trans. denied. This Court has held that

      when evidence of motive is offered for these purposes and there exists a

      relationship between the parties that is characterized by frequent conflict,

      evidence of the defendant’s prior assaults and confrontations with the victim

      may be admitted to show the relationship between the parties as well as motive

      for committing the crime. Id. Our Supreme Court has made clear that

      “hostility is a paradigmatic motive for committing a crime.” Hicks v. State, 690

      N.E.2d 215, 222 (Ind. 1997). Here, the testimony regarding the three prior

      incidents demonstrates Lewis’ pattern of hostility and violence toward Allen

      and his motive for the present offenses. Accordingly, the testimony regarding

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 6 of 11
       the prior incidents was admissible under the motive, defendant’s mental state,
                                                                                 4
       and relationship of the parties exceptions to 404(b).


[10]   Additionally, Lewis acquiesced in part to the admission of the testimony of the

       prior incidents by making an agreement with the State that if the testimony was

       admitted, he could then present evidence of the circumstances and disposition

       of the prior incidents. Lewis did indeed elicit evidence at trial that he was never

       charged with the shooting in the July 13, 2013 incident, and he used the police

       reports from that night to vigorously cross-examine Allen and point out

       discrepancies in his version of the events. Lewis also presented evidence that

       Allen did not report the gas station incident to police and that Allen did not

       initially report the July 26, 2014 incident to police. Lewis elicited evidence that

       Allen had been taken to the hospital by his father where, when questioned, he

       told a police officer he did not know who shot him. Later, he told a different

       officer that it was Lewis who shot him. In closing, defense counsel argued that

       Allen had repeatedly lied — about Lewis’ involvement in the prior incidents, as

       well as the present shooting — and asked that the jury hold him accountable for

       his lies. In light of these circumstances, we conclude that Lewis has not met his

       burden of showing that admission of the testimony made it impossible for him

       to receive a fair trial. Accordingly, we find no fundamental error.




       4
        In his brief, Lewis argues that all five grounds proposed by the State and set forth by the trial court in its
       pretrial ruling are invalid. Because we conclude that the evidence is relevant on at least some of these
       grounds, we need not address the remaining grounds.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016                 Page 7 of 11
                                        2. Motion for Mistrial
[11]   Lewis argues that the trial court erred by denying his motion for mistrial. A

       mistrial is an extreme remedy warranted only when no other curative measure

       will rectify the situation. Donnegan v. State, 809 N.E.2d 966 (Ind. Ct. App.

       2004), trans. denied. The denial of a mistrial is a determination within the trial

       court’s discretion, and we will reverse its decision only for an abuse of that

       discretion. Id. To prevail on appeal from the denial of a motion for mistrial,

       the defendant must establish that the questioned conduct was so prejudicial and

       inflammatory that he was placed in a position of grave peril to which he should

       not have been subjected. Williams v. State, 755 N.E.2d 1128 (Ind. Ct. App.

       2001), trans. denied. The gravity of the peril is determined by considering the

       misconduct’s probable persuasive effect on the jury’s decision. Id. The trial

       judge is in the best position to gauge the circumstances and the probable impact

       on the jury. Donnegan, 809 N.E.2d 966.


[12]   Specifically, Lewis claims that the trial court erred by failing to grant a mistrial

       after jurors impermissibly viewed and discussed the Fort Wayne street map.

       Our Supreme Court recently clarified the procedure to be followed in instances

       of juror misconduct:


               Trial courts must immediately investigate suspected jury taint by
               thoroughly interviewing jurors collectively and individually, if
               necessary. If any of the jurors have been exposed, he must be
               individually interrogated by the court outside the presence of the
               other jurors, to determine the degree of exposure and the likely
               effect thereof. After each juror is so interrogated, he should be
               individually admonished. After all exposed jurors have been
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 8 of 11
               interrogated and admonished, the jury should be assembled and
               collectively admonished, as in the case of a finding of “no
               exposure.” If the imperiled party deems such action insufficient
               to remove the peril, he should move for a mistrial.
       Ramirez v. State, 7 N.E.3d 933, 940 (Ind. 2014).


[13]   The Court additionally held that a defendant seeking a mistrial for suspected

       jury taint is entitled to a 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. Id. at 939.

       The burden then shifts to the State to rebut this presumption of prejudice by

       showing that any contact or communications were harmless. Id. If the State

       does not rebut the presumption, the trial court must grant a new trial. Id.

       Conversely, if the defendant fails to make the initial two-part showing, the

       presumption does not apply. Id. In that case, the trial court grants a new trial

       only if the misconduct is “gross and probably harmed” the defendant. Id. In

       egregious cases where juror conduct fundamentally compromises the

       appearance of juror neutrality, trial courts should skip the initial two-part

       inquiry, find irrebuttable prejudice, and immediately declare a mistrial. Id.


[14]   Here, the parties do not dispute that the initial two-part inquiry set forth in

       Ramirez was fulfilled, thereby shifting the burden to the State to rebut the

       presumption of prejudice by showing that any exposure was harmless. Once

       the map was retrieved from the jury room and examined by counsel and the

       trial judge, Lewis moved for mistrial. The trial court then individually

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 9 of 11
       questioned and admonished each juror, beginning with the juror who brought

       the map. The judge asked each juror if he or she was able to set aside the map

       and any discussions had thereon and make a decision solely on the evidence

       that they heard in the courtroom. Each juror replied affirmatively to the judge’s

       question. Before releasing each juror back to the jury room, the judge

       admonished them to have no further discussions about the map. Once each

       juror had been individually questioned and admonished, the full jury was

       brought into the courtroom where the judge admonished them as a group to

       resume their deliberations and reach a decision based on the evidence presented

       and not on any discussions they may have had about the map. The trial court

       then determined that it had made the necessary inquiry of the jury and that each

       juror had indicated he or she could make a decision based only upon the

       evidence presented, and it denied Lewis’ motion for mistrial.


[15]   The trial court remedied any possible harm by interviewing and admonishing

       the jurors by the procedure as set forth in Ramirez. Further, we presume that

       each juror abided by the trial court’s admonishment not to consider or discuss

       the map. See Street v. State, 30 N.E.3d 41 (Ind. Ct. App. 2015) (it is presumed

       jury followed trial court’s admonishment), trans. denied. All jurors stated they

       could set aside the map and their discussion of the map and make a decision

       based only on the evidence presented in the courtroom; thus, the State was not

       put in the position of having to present additional evidence demonstrating the

       exposure was harmless. Further, Lewis has given us no reason to doubt the

       juror’s assurances, and, as the trial court is in the best position to gauge the


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 10 of 11
       circumstances of an event and its impact on the jury, we will not second-guess

       its decision. See Weisheit v. State, 26 N.E.3d 3 (Ind. 2015) (stating trial court in

       best position to evaluate whether mistrial is warranted because it evaluates first-

       hand relevant facts and circumstances and their impact on jury), cert. denied, 136

       S. Ct. 901 (2016). We find no error with the trial court’s determination that a

       mistrial was not warranted in this case.


[16]   In light of the foregoing, we affirm the judgment of the trial court.


[17]   Judgment affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1140 | March 21, 2016   Page 11 of 11
