MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          Nov 21 2018, 9:12 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                      Curtis T. Hill, Jr.
Lafayette, Indiana                                      Attorney General of Indiana

                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Troy Eugene Howard,                                     November 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-933
        v.                                              Appeal from the Warren Circuit
                                                        Court
State of Indiana,                                       The Honorable Hunter Reece,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        86C01-1612-F5-50



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018                   Page 1 of 6
[1]   Following a jury trial, Troy E. Howard was convicted of Level 5 felony

      operating a motor vehicle after forfeiture of license for life and Level 6 felony

      resisting law enforcement. On appeal, Howard argues that the trial court

      abused its discretion in denying his motion for a mistrial after a potential juror

      made a statement in front of the entire jury panel that suggested Howard had

      been in trouble before.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On December 5, 2016, Warren County Sheriff’s Deputy Kody Perry observed

      Howard, who he knew to have a suspended license, driving a motor vehicle on

      State Road 63. Deputy Perry allowed Howard to pass him and then moved in

      behind Howard’s vehicle and attempted to initiate a traffic stop by activating his

      emergency lights and sirens. Howard did not stop, but instead continued

      driving for several miles, turning on different roads, failing to stop at stop signs,

      passing multiple vehicles where no passing lane existed and going partially off

      the road to do so, and reaching speeds up to ninety-eight miles per hour. The

      vehicle pursuit ended after Howard drove into a field. He then fled on foot. A

      short time later, Howard was apprehended.


[4]   On December 7, 2016, the State charged Howard with Level 5 felony operating

      a motor vehicle after forfeiture of license for life and Level 6 felony resisting law

      enforcement. The State also alleged that Howard was a habitual offender. A

      jury trial was held on February 14, 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018   Page 2 of 6
[5]   During voir dire the trial court went through its initial questions with each

      potential juror. Juror 116 indicated that he had not formed an opinion as to

      Howard’s guilt. The trial court then asked Juror 116, “Is there any reason I

      have not covered by these questions that you believe would make you unable to

      listen with an unbiased mind to the evidence in this case and reach a fair and

      impartial decision?” Transcript Vol. 2 at 56. Juror 116 responded, “Well, I have

      known him all my life, since high school, and I have seen him duck trouble and

      so you don’t need, (inaudible).” Id. The trial court followed up with Juror 116,

      informing him that Howard was presumed innocent and that a verdict must be

      based solely upon what the juror would see and hear in the courtroom. The

      court then asked Juror 116, “Would you be able to set aside any opinions, prior

      information or belief or your knowledge of just knowing [Howard] in the

      community and render an impartial verdict based only upon the law and

      evidence you hear during this trial?” Id. at 57. Juror 116 responded, “Sure.”

      Id.


[6]   Howard then moved for a mistrial outside the presence of the prospective

      jurors. He argued that Juror 116’s statement essentially constituted Ind.

      Evidence Rule 404(b) material and now “the jury knows there have been at

      least prior bad acts in that guys [sic] opinion.” Id. at 59. The trial court denied

      Howard’s motion, finding that statements of jurors are not evidence, that Juror

      116’s statement was ambiguous and could have referred to non-criminal acts or

      traffic-related issues, and that because the parties had agreed to stipulate to the

      jury that Howard was a habitual traffic violator, “the very nature” of the offense


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018   Page 3 of 6
      showed that Howard had prior bad driving acts. Id. at 61. The trial court

      concluded that Juror 116’s statement did not “rise[] to the level of requiring a

      mistrial which is an extreme remedy for incurable issues.” Id. The trial court

      also commented that the impact from Juror 116’s comment could “be easily

      brushed away” during opening or closing statements. Id. at 62. The trial court

      offered to provide an admonishment if Howard so desired, but Howard

      declined because he did not want to draw attention to Juror 116’s statement.


[7]   The prospective jurors were then brought back into the courtroom and voir dire

      of the new prospective jurors in the jury box, including Juror 116, continued.

      At the conclusion of questioning of those prospective jurors, Juror 116 was

      excused. At the conclusion of trial, the jury found Howard guilty as charged,

      and the trial court sentenced him to an aggregate term of 2068 days. Howard

      now appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


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

      the trial court and is reviewed for an abuse of discretion. Brittain v. State, 68

      N.E.3d 611, 619 (Ind. Ct. App. 2017), trans. denied. We afford the trial court

      great deference on appeal because the trial court is in the best position to

      evaluate the relevant circumstances of an event and its impact on the jury. Id.

      at 620. To prevail on appeal from the denial of a motion for a mistrial, the

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

      prejudicial and inflammatory that he was placed in a position of grave peril to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018   Page 4 of 6
       which he should not have been subjected. Id. The declaration of a mistrial is an

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

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

       trans. denied.


[9]    Howard argues that a mistrial was warranted because Juror 116’s comment

       indicated to the jury that he had prior bad acts. We disagree. As the trial court

       pointed out, Juror 116’s statement was ambiguous as to what Juror 116 meant

       when he stated that he had “seen [Howard] duck trouble” in the past. Transcript

       Vol. 2 at 56. This statement did not necessarily indicate that Howard had a

       criminal record. In any vein, the trial court also properly recognized that it was

       clear from the nature of the case that Howard had prior traffic-related bad acts.

       Indeed, the parties stipulated that Howard was a habitual traffic violator.


[10]   Further, we note that Juror 116 stated that he had not formed an opinion as to

       Howard’s guilt and that he would be able to set aside his opinions and

       knowledge he had of Howard and render an impartial verdict based on the law

       and the evidence presented during the trial. This indicated to other prospective

       jurors that whatever prior knowledge Juror 116 had of Howard was not so

       serious or prejudicial that it should have any impact on the case at hand.


[11]   Finally, the trial court conveyed to each prospective juror, through its

       explanation of voir dire and its questioning, that they would have to render a

       verdict only on the evidence presented during the trial. Upon being sworn in,

       each juror took an oath that they would “return a true verdict according to the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018   Page 5 of 6
       law and the evidence as it is presented to you during this trial.” Id. at 80.

       Thereafter, the trial court also instructed the empaneled jury that their verdict

       must be based “solely upon what you see and hear in this Court” and “not be

       influenced in any way by information, opinions, or publicity outside the

       Courtroom.” Id. at 82, 83.


[12]   In light of the forgoing, we conclude that the trial court properly denied

       Howard’s motion for a mistrial as Juror 116’s comments were not so prejudicial

       as to place Howard in a position of grave peril. See Hise v. State, 452 N.E.2d 913

       (Ind. 1983) (holding that prospective juror’s comment that she could not

       presume the defendant to be innocent because she knew the defendant too well

       did not place the defendant in grave peril and thus, trial court did not abuse its

       discretion in denying defendant’s motion for mistrial); Stroud v. State, 450

       N.E.2d 992 (Ind. 1983) (holding that prospective juror’s comment that she

       could not hear the case fairly and impartially because her daughters knew the

       defendant and she feared for their safety did not relate to any substantive facts

       or evidentiary matters that would prejudice the other jurors such that a mistrial

       was warranted).


[13]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018   Page 6 of 6
