MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 06 2019, 9:31 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Deborah Markisohn                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Jones,                                            May 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1320
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1609-F3-36200



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019                 Page 1 of 24
                                Case Summary and Issue
[1]   Following an incident with his girlfriend, Kevin Jones was charged with

      multiple counts of battery and kidnapping. After a jury was selected and sworn,

      but before the trial began, the trial court recessed for a lunch break. As Juror 11

      returned from break, he was approached by a member of Jones’ family who

      whispered something about self-defense. Juror 11 told the bailiff, who informed

      the court and counsel about the contact. Juror 11 also told the other jurors that

      he was probably going to be removed as a juror because someone said

      something to him but he assured the other jurors “[i]t wasn’t anything bad[.]”

      The trial court and counsel questioned Juror 11 about the communication and

      ultimately dismissed him. The trial court and counsel also questioned each

      remaining juror individually about what they had heard from Juror 11 and what

      impact it had on their ability to remain on the jury. After questioning, the State

      orally moved for a mistrial and defense counsel joined, but the trial court

      denied the motion. The jury found Jones guilty of aggravated battery, battery,

      and domestic battery, but not guilty of kidnapping. Jones now appeals and

      presents the sole issue of whether the trial court abused its discretion in denying

      the State and Jones’ joint motion for a mistrial due to suspected jury taint.

      Concluding the trial court did not abuse its discretion, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 2 of 24
                             Facts and Procedural History                                 1




[2]   Jones and Ashley Glover had been in a relationship for “[f]ive years on and

      off.” Transcript, Volume II at 115. On September 9, 2016, Jones and Glover

      were at Jones’ house and both had been drinking and using drugs. While in the

      bedroom, the two got into an argument and Glover got her phone and

      attempted to call someone. Jones “snatched the phone out of [Glover’s] hand

      and threw it.” Id. at 120. Glover gathered her things and said, “Well, I’m

      going to go. I’ll call you. Call me when you cool down.” Id. Jones responded,

      “You think you [sic] going to walk out of this door, this will be the last door

      you walk out of.” Id. Jones then hit Glover in the face. Glover stood up and

      realized she had been cut on her leg and she began to bleed “uncontrollably.”

      Id. at 121. She fell to the ground and crawled to the bed to get her phone to call

      911. She lost consciousness. The next thing Glover remembered was that

      Jones returned to the room, grabbed her arms, and began to drag her to the

      porch. She thought he dragged her to the front room and “didn’t know that

      [she] was outside . . . until the paramedics came.” Id. at 122. Glover had

      injuries to her face and lost a significant amount of blood and was taken by

      ambulance to Eskenazi Hospital where she underwent surgery, but ultimately

      survived.




      1
       We held an oral argument on March 19, 2019 at the Hammond Academy of Science and Technology in
      Hammond, Indiana. We thank the students, faculty, and staff for their hospitality and gracious reception
      and commend counsel on their effective advocacy.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019                    Page 3 of 24
[3]   On September 14, 2016, the State charged Jones with the following: Count I,

      aggravated battery, a Level 3 felony; Count II, kidnapping, a Level 6 felony;

      Count III, battery resulting in bodily injury, a Class A misdemeanor; and Count

      IV, domestic battery, a Class A misdemeanor. Later, the State added Count V,

      aggravated battery, a Level 3 felony, and alleged Jones was an habitual

      offender. On May 13, 2018, the State filed a motion to dismiss Count I, which

      the trial court granted. See Appellant’s Appendix, Volume II at 107, 17.


[4]   A jury trial on the remaining counts began on May 14 and concluded on May

      15. Following the voir dire process, a jury was selected, sworn, and recessed for

      a lunch break. As Juror 11 returned from lunch, he was approached by a

      person who identified himself as a member of Jones’ family and mentioned

      something about self-defense. Juror 11 promptly told the bailiff, who in turn

      informed the court and counsel about the encounter. After the break, the court

      reconvened without the jury and the trial court informed the parties that a juror

      had been approached by someone. The trial court stated, “I was going to bring

      that juror out, talk to him, see what’s going on and take it from there.” Tr.,

      Vol. II at 24. Juror 11 was called in to the courtroom and described the

      encounter:


              [Juror No. 11]:          I was coming into the security and a
                                       gentleman just said, he said, “Oh, you’re a
                                       juror.” I said, “Yeah, Are you?” “No.” He
                                       said, “My uncle’s the Defendant,” and then
                                       he kind of under his breath just said, “self-
                                       defense (inaudible).” Like something to that
                                       effect, kind of . . .

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019      Page 4 of 24
        [Court]:                 Okay. And that is the extent of it?


        [Juror No. 11]:          Yes.


        [Court]:                 Okay. And then you parted ways and you
                                 came up here?


        [Juror No. 11]:          Yes.


        [Court]:                 . . . [D]o you think it will impact your ability
                                 to be fair and impartial in this case?


        [Juror No. 11]:          Yes.


        ***


        [State]:                 Sir, when you got back, did you talk to any of
                                 the other jurors about that?


        [Juror No. 11]:          Yeah, I did tell the other jurors that I might
                                 be dispensed because someone came up and
                                 spoke to me, and then I said, “It wasn’t
                                 anything bad,” and then they’re like, “No, we
                                 don’t want to hear it.” I’m like, “No, that’s
                                 not what I’m saying.” I just said, “It wasn’t –
                                 I don’t want anybody to be scared.”


        ***


        [Defense]:               Did you happen to tell who said something to
                                 you or just state it like that, that someone
                                 approached you?


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019         Page 5 of 24
        [Juror No. 11]:          I just said “someone.” That’s it.


        ***


        Juror No. 11 is removed from the presence of the courtroom[.]


        [Court]:                 Okay, discussions from the State?


        [State]:                 Judge, I think we’re at a mistrial. He told
                                 that he was approached and then told all the
                                 other jurors what happened, and I think that
                                 that – we don’t know how they’re
                                 interpreting it. They could interpret it either
                                 way. I think regardless, there’s going to be
                                 something else in the jury room that’s not
                                 evidence.


        [Court]:                 Okay.


        [Defense]:               I agree, Judge. I mean, I don’t know if it will
                                 negatively impact my client. I don’t know if
                                 there were other jurors that were in the line
                                 that heard or witnessed.


Id. at 25-27. After this discussion, the trial court explained, “I’m in the rare

position I don’t think we’re at a mistrial. I’m willing to individually voir dire

jurors and see what they know, what they don’t know. I think we are in a

position to dismiss this juror, but I don’t know if he’s tainted this whole jury

pool.” Id. at 27.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019        Page 6 of 24
[5]   Juror 11 was dismissed and escorted back to the jury room to gather his things.

      The trial court then called each juror individually into the courtroom to “see

      where their minds are and the way they feel about [what Juror 11 told them].”

      Id. at 28. Although all the prospective jurors were sworn in at the beginning of

      voir dire, the jurors were not placed under oath again during individual

      questioning regarding the communication at issue. All jurors were questioned

      in the presence of the observers in the gallery.


[6]   Juror 1 was informed by the trial court that a juror had been dismissed and

      asked if she knew why. She responded, “I just had heard that he had been

      spoken to by a family member” but “didn’t catch” whose family. Id. at 29.

      Juror 1 stated she was not influenced by this and felt comfortable sitting on the

      jury. The trial court cautioned her “not [to] talk about what we’ve just

      discussed here . . . until we get going.” Id. at 30. After the juror left, defense

      counsel expressed concern, stating “we already have a discrepancy. He said he

      didn’t say who approached. [Juror 1] says it was by a family member.” Id.


[7]   Juror 2 knew that Juror 11 had been dismissed because “[h]e was spoken to by

      the family of the accused[,]” but did not know what was said. Id. at 31. When

      asked whether it would impact her ability to serve, she stated “I don’t think so,

      no.” Id. at 32. She explained that when Juror 11 came back “[h]e was already

      in the room and he just said that he was approached by a family member” and

      recalled that every juror was in the room at the time, but she was “not totally

      certain.” Id. Juror 2 stated she was comfortable sitting on the jury and the trial



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 7 of 24
       court asked that she “not discuss what [they] just talked about with the jurors.”

       Id.


[8]    When Juror 3 was brought into the courtroom, she did not know a juror had

       been dismissed. The trial court asked if she heard Juror 11 say anything to the

       jury and she replied that she “didn’t hear anything.” Id. at 33. Juror 3 stated it

       would “not really” impact her ability to be fair and impartial and she was

       comfortable serving on the jury. Id. Before Juror 3 was removed, the trial court

       stated: “Please don’t discuss what we talked about out here with the other

       jurors, for now anyway.” Id. After Juror 3 was removed, defense counsel

       stated, “as soon as [the court] asked that question, she looked over at us and

       then she said she didn’t hear anything, but the other jurors said everybody was

       in there.” Id. at 34.


[9]    Juror 4 knew a juror has been dismissed because “[s]omeone from the

       Defendant’s party, family contacted him[,]” but did not know anything else. Id.

       When asked whether “dismissing that juror or what you heard about what was

       said or what you know” would impact his ability to be fair and impartial, he

       responded “I don’t think so.” Id. Juror 4 was comfortable being a juror in the

       case and the trial court “ask[ed] that [he] not discuss with the other jurors what

       [he] talked about here.” Id. at 35.


[10]   Juror 5 was also aware a juror had been dismissed: “He said a family member

       talked to him. He did not tell us why, because I didn’t want to know, because

       no one talked to me so I was good.” Id. at 36. Juror 5 stated she was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 8 of 24
       comfortable serving on the jury and the interaction did not impact her ability to

       be fair and impartial. The trial court asked that Juror 5 “not discuss what we

       talked about here with the rest of the jury.” Id.


[11]   Next, Juror 6 was called into the courtroom. Juror 6 stated, “I heard in the jury

       room . . . that someone came up and talked to him.” Id. at 37. He continued,

       “I didn’t hear exactly what they said. It was a family member of the accused.

       He didn’t really say what was said.” Id. Juror 6 stated the incident did not

       impact his ability to sit on the jury and he could be fair and impartial. When

       the State asked, “[D]oes anything about what you heard make you

       uncomfortable sitting on this jury today?,” he responded, “Not markedly . . .

       [s]omewhat but not very much.” Id. at 38. The trial court asked what Juror 6

       meant when he stated “somewhat[.]” Id. Juror 6 responded, “Well, I mean, I

       imagine an incident in my head – an impassioned plea on the part of a family

       member, but really, I didn’t really hear much of what happened and I think it

       would be pretty easy for me to dismiss that image from my mind during

       deliberation.” Id. He believed he could make a decision based on the facts of

       the case rather than the “the image in [his] mind.” Id. Juror 6 was removed

       from the courtroom without being instructed not to discuss the conversation

       with other jurors.


[12]   Juror 7 was aware Juror 11 had been dismissed because he was approached

       during lunch by a family member but did not know what was said. Juror 7

       stated her ability to be fair and impartial was not impacted and she felt



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 9 of 24
       comfortable sitting on the jury. Juror 7 was asked not to discuss the

       conversation in the courtroom with the other jurors.


[13]   Juror 8 knew Juror 11 had been dismissed because “someone approached him”

       but he did not know who. Id. at 41. When asked whether he knew what was

       said when Juror 11 was approached, Juror 8 stated, “No. We told him, you

       know, say no more at that point.” Id. He stated the incident would not impact

       his ability to be fair and impartial and he was comfortable sitting on the jury.

       The trial court did not admonish Juror 8 not to discuss the conversation.


[14]   Juror 9 was called into the courtroom and questioned but did not know that a

       juror had been dismissed and had no knowledge of the incident. Juror 9 stated

       he could be fair and impartial. Juror 9 was asked not to discuss the

       conversation with the other jurors and was then returned to the jury room.

       Juror 10 was also unaware a juror had been dismissed, did not hear about the

       incident, and said he could be a fair and impartial juror. The trial court stated,

       “I ask that you not discuss . . . what we’ve talked about out here with the other

       jurors[.]” Id. at 43.


[15]   After informing Juror 12 that a juror had been dismissed, Juror 12 guessed the

       juror was dismissed because “he had had contact with somebody . . . someone

       from the Defendant’s family.” Id. at 43-44. However, Juror 12 did not know

       what the individual said to Juror 11 and stated he could be a fair and impartial

       juror and was not uncomfortable sitting on the jury. The trial court did not

       admonish Juror 12 to refrain from discussing the conversation.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 10 of 24
[16]   Alternate Juror 1 was not aware a juror had been dismissed or of the incident.

       He stated he could be fair and impartial, and the trial court informed him that

       he was officially part of the jury and asked him not to discuss the conversation

       with the other jurors. Alternate Juror 2 was the remaining and now only

       alternate. When called into the courtroom, she stated that she was aware a

       juror had been removed because “somebody talked to him.” Id. at 46. She did

       not know what was said but felt she could be a fair and impartial juror and was

       comfortable sitting on the jury. Alternate Juror 2 was returned to the jury room

       without the trial court asking her not to discuss the conversation.


[17]   After each juror was individually questioned, the following colloquy ensued:


               [State]:        I don’t think that changes my position. . . . [One
                               juror] said that it would make him somewhat
                               uncomfortable and he said he thinks he can set it
                               aside but he still expressed concern.


                               [Another juror] . . . was looking directly at the
                               Defendant’s family and the entire time she is telling
                               us she didn’t hear anything and didn’t know
                               anything.


                               I think it’s somewhat unfair to ask these jurors to sit
                               and listen to evidence for two days knowing that
                               someone was approached. I know that would make
                               me uncomfortable, and I definitely wouldn’t
                               probably say that, but I would just have concerns
                               that even if they want to be on this jury and they
                               want to be fair and impartial and they want to say
                               they’re fine with it, it’s still asking them to kind of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 11 of 24
                        take something back to the jury room with them
                        that’s not in evidence.


                        And I would be concerned that if the State secured a
                        conviction on this case, it would be a ripe issue for
                        appeal.


        [Court]:        Okay.


        [State]:        And it would be back here again. And this case is
                        old, I get it. I’m the fourth prosecutor on it. I am so
                        ready to get it over with. [The victim] is so ready to
                        get this over with. I just don’t – [Jones] is ready to
                        get this over with, and I want to make sure that we
                        are giving all parties a fair trial that is deserved.


                        So that is my record. I would have concerns after
                        this that the jury is going to be focused on other
                        issues.


        ***


        [Defense]:      I agree, Judge. I don’t – regardless of what was
                        stated here as you polled the jury, I believe the jury
                        has been tainted. I don’t think all of the jurors were
                        actually honest about – I mean, some jurors said he
                        told everybody, some jurors said they didn’t hear
                        anything. I know the Court said that’s possible, but
                        they’re all discussing – human nature, they’re
                        discussing the issues, especially being polled.


                        I think my client is at a disadvantage. You know,
                        while they’re considering hearing the evidence,
                        there may – human nature, be looking out in the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 12 of 24
                        audience to see if they can read individuals’ [sic] in
                        the audience position, and I just think it’s going to –
                        my client is disadvantaged, is biased, I agree with
                        the State.


                        And I know my client would, if we are not
                        successful, would be appealing on this very issue,
                        especially because of the record that’s being made.
                        We believe that the pool has been tainted.


        [Court]:        Okay. All right. Counsel both have made their
                        record. I guess I still stand against it. After talking
                        to all the jurors, I don’t think that the initial was
                        sufficiently egregious to warrant a mistrial. I think
                        talking to the jurors gave me more . . . confidence
                        that those who were aware of it are not disturbed by
                        it.


                        We’ve had other juries where jurors have been, you
                        know, exposed to various things. I don’t think this
                        rises to those levels. I can’t think of any in
                        particular, but they did not warrant a mistrial. I
                        don’t believe the circumstances under this case as I
                        understand them to be warrant a mistrial.


                        So I appreciate the argument of counsel, both state
                        and defense. The mistrial is denied and we’ll
                        proceed.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 13 of 24
       Id. at 46-49.2 After a recess, the trial court admonished the gallery: “We,

       obviously, had an incident involving someone in the gallery. I don’t know if it

       was the folks here or someone that’s not here, but you can’t interact with the

       jurors. You just can’t do it. It puts everything at jeopardy for no reason. It

       usually harms the people you intend to help, so however well-intentioned it

       may be, it just can’t be done.” Id. at 50. The State requested the trial court

       admonish the jury as well, but the trial court declined the request and stated, “I

       think we reviewed it sufficiently with the jury. I may speak to it briefly, but it

       will not be in the form of an admonishment.” Id.


[18]   The trial commenced. At the end of the first day of trial, the State again

       addressed its concern of jury taint: “The entire trial today, through all of the

       evidence, the Defendant’s family has been speaking, making comments. If I

       can hear it, the jury definitely can. They can see it. Specifically when the Court

       is sustaining State’s objections, they are reacting. Given the issues that we have

       already had today, I am really concerned at how this is affecting the jury and

       that its [sic] not being addressed.” Id. at 161-62. The trial court then addressed

       the gallery and asked everyone to keep their thoughts to themselves or they

       would be removed.


[19]   Following the two-day trial, the jury found Jones guilty of Counts III through

       V, namely battery resulting in bodily injury, domestic battery, and aggravated



       2
         The Chronological Case Summary (“CCS”) indicates that, on May 14, a motion for mistrial was orally and
       jointly made by defense counsel and the State. See Appellant’s App., Vol. II at 17.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019                Page 14 of 24
       battery. The jury found Jones not guilty of Count II, kidnapping. On May 24,

       the trial court held a sentencing hearing where Jones stipulated that he was an

       habitual offender. See Tr., Vol. III at 60. Jones received one year each for

       Counts III and IV, to be served concurrently; nine years for Count V,

       aggravated battery, to run consecutively to the sentences for Counts III and IV.

       The sentence for Count V was enhanced by ten years for the habitual offender

       finding for a total of twenty years in the Indiana Department of Correction. See

       id. at 73; Appealed Order at 1. Jones now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[20]   In order to prevail on appeal from the denial of a motion for mistrial, a

       defendant must establish that the questioned information or event was so

       prejudicial and inflammatory that he or she was placed in a position of grave

       peril to which he or she should not have been subjected. Bisard v. State, 26

       N.E.3d 1060, 1068 (Ind. Ct. App. 2015), trans. denied. “The gravity of the peril

       is determined by the probable and persuasive effect on the jury’s decision.” Id.

       A trial court is in the best position to evaluate whether a mistrial is warranted

       “because it can assess first-hand all relevant facts and circumstances and their

       impact on the jury.” Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We,

       therefore, review a trial court’s decision to deny a motion for a mistrial for an

       abuse of discretion. Id. An abuse of discretion occurs when the trial court’s



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 15 of 24
       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012).


                                      II. Motion for Mistrial
[21]   “An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth

       Amendment and Article 1, Section 13 of our Indiana Constitution.” Ramirez, 7

       N.E.3d at 936. To preserve impartiality and prevent taint, we prohibit

       unauthorized contacts and communications with jurors. Id. “Yet, no trial is

       perfect, and we have long held that [w]hile courts have a duty to ensure an

       impartial jury . . . jurors need not be absolutely insulated from all extraneous

       influences.” Id. (quotation omitted). Therefore, a trial court is entrusted with

       the difficult responsibility of determining when extraneous influences become

       irreparable taint warranting a new trial. Id. We acknowledge that a mistrial is

       “an extreme remedy warranted only when no other curative measure will

       rectify the situation.” Bisard, 26 N.E.3d at 1067-68.


[22]   Our supreme court recently clarified the proper procedure for trial courts to

       follow in instances of juror misconduct. A defendant who moves for a mistrial

       due to suspected jury taint is entitled to a presumption of prejudice only upon

       showing, by a preponderance of the evidence,3 that: (1) extra-judicial contact or

       communications between jurors and unauthorized persons occurred, and (2) the




       3
        Preponderance of the evidence “simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17
       N.E.3d 363, 373 (Ind. Ct. App. 2014) (internal quotations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019                  Page 16 of 24
       contact or communications pertained to the matter before the jury. Ramirez, 7

       N.E.3d at 939 (citing Currin v. State, 497 N.E.2d 1045, 1046 (Ind. 1986)). Once

       a defendant makes these two showings, the burden shifts to the State to rebut

       this presumption of prejudice by demonstrating that any contact or

       communications were harmless, id., namely that the defendant was convicted

       by an impartial jury, Wahl v. State, 51 N.E.3d 113, 116 (Ind. 2016) (noting the

       constitutional right to an impartial jury is “so basic to a fair trial its infraction

       can never be treated as harmless error.”). If the State does not rebut this

       presumption, the trial court is required to grant the defendant a new trial.

       Ramirez, 7 N.E.3d at 939. Additionally, our supreme court explained:


               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
               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.


       Id. at 940 (quotation omitted).


[23]   However, if the defendant fails to meet the two-part showing, the presumption

       of prejudice is inapplicable and the trial court must apply the probable harm

       standard for juror misconduct, in which a new trial should be granted only if

       the misconduct is “gross and probably harmed” the defendant. Id. at 939. In

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 17 of 24
       egregious cases, in which juror conduct “fundamentally compromises the

       appearance of juror neutrality,” the trial court should skip the two-part test, find

       irrebuttable prejudice, and declare a mistrial. Id. “At all times, trial courts have

       discretion to decide whether a defendant has satisfied the initial two-part

       showing necessary to obtain the presumption of prejudice or a finding of

       irrebuttable prejudice.” Id. This standard is applicable whenever a defendant

       seeks a mistrial due to suspected jury taint, regardless of when the alleged taint

       occurred. Wahl, 51 N.E.3d at 116.


[24]   Jones maintains the two-part inquiry has been met here and he was therefore

       entitled to a presumption of prejudice. Jones then goes on to argue that because

       the State failed to rebut the presumption and “actively sought to establish the

       jury was not impartial[,]” it cannot demonstrate harmlessness. Brief of the

       Appellant at 30. The State does not challenge that Jones has met the two-part

       inquiry. The State repeatedly expressed concern at trial that the jury might not

       be impartial due to the extra-judicial communication and moved for a mistrial,

       but on appeal it argues that the trial court did not abuse its discretion in denying

       the motion for a mistrial because the extra-judicial contact was harmless and

       Jones was convicted by an impartial jury. Brief of Appellee at 12. “If the State

       is able to demonstrate that a jury was impartial, the presumption of prejudice is

       rebutted and the contact or communications can be treated as harmless.” Wahl,

       51 N.E.3d at 116.


[25]   Our court’s decision in Bisard guides our analysis in this case. During Bisard’s

       operating while intoxicated trial, Juror 8-2 conducted an internet search

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 18 of 24
regarding the instruments used to analyze blood samples for alcohol and

reversals in another state. Juror 8-2 shared this information with the other

jurors.


          As soon as the trial court learned of Juror 8-2’s misconduct, the
          court brought Juror 8-2 into the courtroom and inquired into his
          actions. Juror 8-2 admitted to conducting independent research
          and informed the court of his findings. The trial court
          immediately removed Juror 8-2 from the jury and had him
          escorted from the building. The trial court then summoned the
          remaining jurors, one at a time, into the courtroom, where the
          trial court questioned each of them about what they knew of
          Juror 8-2’s actions. Some of the jurors knew nothing of Juror 8-
          2’s conduct. Those jurors who were somewhat aware of what
          Juror 8-2 had done assured the trial court that they could set
          aside anything they had heard and decide the case based solely
          on the evidence they had heard or had seen in the courtroom.


          ***


          . . . Based on its questioning of the jurors, the jurors’ assurances
          that they could decide the case on the evidence presented in the
          courtroom, in conjunction with its assessment of the jurors’
          demeanor, the trial court determined that it was “perfectly
          comfortable” with allowing the jury to begin deliberations.
          Given the trial court’s assessment that the dismissal of Juror 8-2
          removed any taint on the jury, the State was not put in the
          position to have to present additional evidence demonstrating
          that Juror 8-2’s conduct was harmless.


26 N.E.3d at 1069. Therefore, the trial court’s dismissal of Juror 8-2 was

sufficient to remove any taint. The State did not dispute that misconduct

occurred or that it pertained to an issue before the jury; therefore, the defendant

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 19 of 24
       was entitled to a presumption of prejudice and the burden shifted to the State to

       rebut the presumption pursuant to Ramirez. However, the court explained that

       based on the trial court’s assessment that the juror’s dismissal removed any

       taint, the State was not put in the position of demonstrating additional evidence

       that the contact was harmless. Id. Similarly here, the trial court ultimately

       determined the extra-judicial communication was essentially harmless and it

       did not merit the extreme measure of a mistrial. In fact, the trial court stated it

       was confident that the jurors who were aware of the incident were not

       influenced by it.


[26]   Moreover, the evidence in the record establishes that the jury was impartial.

       After Juror 11 was removed, each remaining juror indicated that the incident

       would not impact their ability to be impartial and felt comfortable sitting on the

       jury. The record also reveals that none of the jurors knew the content of the

       communication.


[27]   We acknowledge that the trial court did not place the jurors under oath during

       questioning, it failed to provide consistent admonishments or in some cases

       failed to provide an admonishment altogether, and the individual questioning

       transpired in the presence of those in the gallery. The record also establishes

       that there were inconsistencies between Juror 11’s statement regarding the

       information he relayed to the other jurors and statements by several jurors

       about what they heard. Ultimately, however, we must determine whether these

       failures of the trial court and inconsistencies between the juror’s statements

       warrant a mistrial. We conclude they do not. Although a defendant is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 20 of 24
       constitutionally entitled to a trial by an impartial jury, “no trial is perfect[.]”

       Ramirez, 7 N.E.3d at 936. Because the trial court is in the best position to view

       the jurors, assess their credibility, and “gauge the surrounding circumstances of

       an event and its impact on the jury,” Bisard, 26 N.E.3d at 1069, it is entrusted

       with the difficult responsibility of determining when extraneous influences

       become irreparable taint warranting a new trial, Ramirez, 7 N.E.3d at 936.

       Here, the trial court questioned each juror individually, determined they were

       impartial, and confidently denied the parties’ motion for a mistrial. Therefore,

       we will not second-guess the trial court’s determination that the “extreme

       remedy of a mistrial was unnecessary here.” Woods v. State, 98 N.E.3d 656, 672

       (Ind. Ct. App. 2018), trans. denied; see also Bisard, 26 N.E.3d at 1069.



                                              Conclusion
[28]   Because the trial court properly removed Juror 11 and the remaining jurors

       indicated they could be impartial, we conclude that the trial court’s

       determination that the extreme remedy of a mistrial was unnecessary is

       supported by the record and therefore, was not an abuse of discretion.

       Accordingly, we affirm.


[29]   Affirmed.


       Riley, J., concurs.


       Mathias, J., dissents with separate opinion.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 21 of 24
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Kevin Jones,                                            Court of Appeals Case No.
                                                               18A-CR-1320
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Mathias, Judge, dissenting.


[30]   Because I believe that the trial court abused its discretion by denying the State’s

       and Jones’s joint request for a mistrial, I respectfully dissent.


[31]   As set forth by the majority, a defendant is entitled to a presumption of

       prejudice if he or she shows by a preponderance of the evidence that extra-

       judicial contact or communications between jurors and unauthorized persons

       occurred and that the contact or communications pertained to the matter before

       the jury. Ramirez, 7 N.E.3d at 939 (citing Currin, 497 N.E.2d at 1046). The State

       acknowledges on appeal that Jones met this burden, as the evidence clearly


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019         Page 22 of 24
       shows that one of Jones’s family members contacted Juror 11 and spoke to him

       about the case against Jones. It was then the State’s burden to rebut this

       presumption of prejudice. Id. But here, the State made no attempt at trial to

       meet this burden because it too requested a mistrial.4 And the efforts by the trial

       court to ensure that the jury was untainted by the contact fell short of rebutting

       this presumption of prejudice.


[32]   The trial court rightly dismissed Juror 11, who had been contacted by Jones’s

       relative. But when the trial court questioned the remaining jurors, it failed to

       place them under oath as required by Indiana Jury Rule 24, and it

       inconsistently admonished the jurors with regard to the propriety of discussing

       the incident amongst themselves. The trial court also denied the State’s request

       to admonish the jury as a whole.


[33]   Furthermore, after Juror 11 was removed, five of the remaining jurors gave

       what I consider to be only half-hearted assurances as to whether the incident

       with Juror 11 would impact their ability to act as jurors. When asked if she felt

       comfortable sitting on the jury after the incident with Juror 11, Juror 1 stated, “I

       believe so.” Tr. Vol. 2, p. 30. Although Juror 2 stated that the she felt she could

       be fair and impartial, when asked if the incident with Juror 11 had an impact on

       her, Juror 2 replied, “I don’t think so, no.” Id. at 31–32. Juror 3 stated that the




       4
        I do not mean to suggest that a trial court must always grant a request for mistrial that is joined by both
       parties. But the fact that both parties here requested a mistrial indicates that neither party felt that the jury
       was untainted. And the State made no effort at trial to rebut the presumption of prejudice.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019                            Page 23 of 24
       incident with Juror 11 would “not really” impact her ability to be fair and

       impartial. Id. at 33. And when asked if dismissing Juror 11 for the extra-judicial

       communications Juror 11 had with Jones’s family member would impact his

       ability to be fair and impartial, Juror 4 stated, “I don’t think so.” Id. at 34. And

       although Juror 6 stated that the incident would not impact his ability to be fair

       and impartial, when asked if the incident made him uncomfortable to be on the

       jury, he replied, “Not markedly . . . [s]omewhat but not very much.” Id. at 38.

       None of these are exactly unequivocal responses.


[34]   After the jurors were individually questioned, the State still maintained the need

       for a mistrial, noting that Juror 6 stated that he would be “somewhat”

       uncomfortable sitting on the jury and that another juror had been looking at

       Jones’s family while being questioned. Id. at 47. The defense noted that there

       was also some inconsistency among the remaining jurors as to whether they

       had heard Juror 11 tell them what had happened. Still, the trial court decided

       not to declare a mistrial.


[35]   Given the procedural irregularities governing the questioning of the jurors and

       the equivocal responses of several of the jurors regarding the effect the incident

       involving Juror 11 had on their ability to comfortably sit as jurors, I must

       conclude that the presumption of prejudice was not rebutted. Indeed, as noted,

       at trial, the State made no attempt to rebut the presumption because it too

       believed a mistrial was required. Accordingly, I would hold that the trial court

       abused its discretion by denying the State’s and defense’s joint requests for a

       mistrial, and I would reverse Jones’s convictions and remand for a retrial.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019   Page 24 of 24
