MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        May 11 2017, 6:00 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
Michael C. Borschel                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bradley Baldwin,                                        May 11, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1609-CR-2025
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G01-1501-MR-2632



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017       Page 1 of 14
[1]   Bradley Baldwin appeals his convictions of murder 1 and attempted murder. 2

      Baldwin raises two issues, which we restate as:

                 (1) Whether the trial court abused its discretion by excluding
                     exculpatory evidence; and


                 (2) Whether the trial court abused its discretion when it denied
                     Baldwin’s motion for mistrial based on confirmed juror
                     misconduct.


[2]   We affirm. 3



                                Facts and Procedural History
[3]   Around 9 p.m. on January 19, 2015, Baldwin invited Lisa Davis 4 to use

      methamphetamines with him. The pair drove Baldwin’s Chrysler Sebring to a

      “trap house” 5 at 3675 Creston Drive in Marion County. While there, Baldwin

      showed his revolver to Lisa and placed it on her lap. Davis described Baldwin’s

      revolver as older, and “dark in color,” with wooden grips. (Tr. Vol. 2 at 108-9.)

      Another person at the house, Dustin Houghton, was also in possession of a




      1
          Ind. Code § 35-42-1-1(1) (2014).
      2
          Ind. Code §§ 35-42-1-1(1) (murder) (2014), 35-41-5-1 (attempt) (2014).
      3
        We held oral argument on April 20, 2017, at Tri-West High School in Lizton, Indiana. We thank counsel
      for their advocacy, and the students and staff of Tri-West for their warm welcome.
      4
        In January 2015 when these events unfolded, Lisa’s last name was Davis, but by the time of trial, she
      married and her name was “Lisa Neville.” (Tr. Vol. 2 at 99.) To avoid confusion, we refer to her as Davis
      throughout this opinion.
      5
          Davis agreed a “trap house” is a “place where you could go to get high.” (Tr. Vol. 2 at 106.)


      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017                 Page 2 of 14
      revolver. Houghton showed his revolver to Baldwin, who then refused to

      return it to Houghton. Davis believed Houghton’s revolver was newer. Davis

      heard Houghton apologize multiple times to Baldwin and to another man at the

      trap house, Timothy Browers, but she did not know why he was apologizing.

      Baldwin’s response to Houghton was to say “it’s okay – it’s no big deal.” (Id. at

      111.)


[4]   About six hours later, the couple left the house on Creston. Baldwin asked

      Davis to drive his car and follow the white Chevy Cavalier in which Baldwin

      would ride because they were going to drop off the Cavalier. Also in the

      Cavalier with Baldwin were Houghton, Cecil Warner, and Ronald Scheible.

      Davis, driving Baldwin’s car, followed the Cavalier for about “five minutes” to

      an alley off West Washington Street. (Id. at 115.) The Cavalier pulled into a

      parking space next to a garage, and Davis parked Baldwin’s car down the alley

      about ten feet past where the Cavalier parked, as Baldwin had instructed her.

      The alley was behind a house at 114 North Belmont Avenue.


[5]   After the cars parked, Baldwin and Warner exited the Cavalier and entered the

      house at 114 North Belmont for five or ten minutes. Houghton and Scheible

      remained in the Cavalier. Baldwin and Warner used some drugs with the

      people in the house, and Baldwin unsuccessfully attempted to trade Houghton’s

      revolver for additional drugs. At one point, Houghton got nervous and began

      to drive away from the scene. When Davis saw the Cavalier back out of the

      parking space by the garage, she was confused because she thought they were



      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 3 of 14
      dropping the car off, but then Houghton parked the Cavalier in the alley behind

      where Davis was sitting in Baldwin’s car.


[6]   Baldwin and Warner left the house to return to the Cavalier, but Warner

      realized he had forgotten his bottle of alcohol inside the house, so he went back

      for it. Baldwin climbed into the Cavalier, exchanged words with Houghton,

      and then shot Houghton in the head with a revolver. As Warner walked

      toward the Cavalier a second time, he heard a shot fired, but he thought

      Baldwin was shooting into the air.


[7]   Baldwin then told Scheible, “come on,” (id. at 158), and the two of them exited

      the Cavalier and walked toward Baldwin’s car. Warner sat in the front seat of

      Houghton’s car and began talking to Houghton. Warner did not know

      Houghton was shot until he nudged Houghton and Houghton’s head fell

      forward. About the time Warner realized Houghton had been shot, Baldwin

      was about to enter the front passenger door of Baldwin’s car and Scheible was

      about to enter the rear passenger door of Baldwin’s car. Instead, Baldwin

      suddenly said, “no, you ain’t going nowhere neither,” (id.), and shot Scheible.

      Scheible fell to the ground. Baldwin stepped over Scheible and shot him three

      more times. Warner testified Baldwin shot Scheible five times. Scheible rolled

      under a nearby car and pretended to be dead. Davis “heard some pops,” (id. at

      117), coming from behind where she was sitting in Baldwin’s car, and she

      assumed they were gunshots, but she could not see what was happening.

      Baldwin then jumped into the passenger seat of his car and yelled for Davis to

      “go, go, go.” (Id. at 120.)

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 4 of 14
[8]    Davis and Baldwin returned to the trap house on Creston. When they arrived,

       Baldwin asked a resident of the home, Michael Myers, to clean the two

       revolvers. Myers first refused, but Baldwin continued to ask, so Myers took the

       guns apart, wrapped them in towels without cleaning them, and shoved them in

       the flu pipe of a fireplace in the basement of the house. Police and SWAT came

       to the house later that day to arrest Baldwin. Myers gave the police a statement

       of the events and showed the police where he had placed the guns.


[9]    The State charged Baldwin with the murder of Houghton, the attempted

       murder of Scheible, and Level 4 felony unlawful possession of a firearm by a

       serious violent felon, 6 and it also alleged Baldwin is a habitual offender. 7 The

       trial court conducted a three-day jury trial. A jury found Baldwin committed all

       three crimes and is a habitual offender. 8


[10]   On June 1, 2016, Baldwin filed a motion for mistrial based on juror

       misconduct, and the trial court held a hearing thereon. The undisputed

       evidence is that on the evening of May 10, 2016, between the second and third

       days of Baldwin’s trial, the juror who would be elected jury foreperson, K.W.,

       texted friends who are licensed attorneys to ask multiple questions about the




       6
           Ind. Code § 35-47-4-5(c) (2014).
       7
           Ind. Code § 35-50-2-8(a) (2014).
       8
         Although Baldwin does not challenge his sentences, we note the trial court ordered him to serve consecutive
       sentences of fifty years for murder, thirty years for attempted murder, and twenty years for being a habitual
       offender. The Sentencing Order also indicates the count of unlawful possession of a firearm by a serious
       violent felon was “Dismissed.” (Appellant’s App. Vol. 2 at 20.)

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017             Page 5 of 14
       burden of proof in a criminal case and how it is defined. (See Appellant’s App.

       Vol. 2 Confidential at 137-148.) When the attorney-friends found out K.W.

       had asked the questions because she was sitting as a juror on a case, they

       became very concerned that K.W.’s behavior was improper and that their

       talking to K.W. about legal standards while she was a seated juror could be

       considered unethical behavior by a lawyer. The attorney-friends therefore hired

       counsel and, on May 13, 2016, submitted to the Judge who presided over

       Baldwin’s trial a letter of explanation and copies of all the text messages. At the

       hearing on Baldwin’s motion for mistrial, K.W. testified she did not tell the

       other jurors about her conversation with attorney-friends, she did not use her

       attorney-friends’ comments to influence her decisions about Baldwin, she relied

       on the instructions given by the trial court during deliberations, and she

       believed the jury rendered a fair and impartial verdict. The trial court denied

       Baldwin’s motion for a mistrial because Baldwin was not prejudiced by K.W.’s

       conversations with her attorney-friends about how to define the standard of

       proof in a criminal case.



                                 Discussion and Decision
                      Exclusion of Alleged Exculpatory Evidence
[11]   “Trial courts have broad discretion to admit or exclude evidence, and our

       review is limited to whether the trial court abused that discretion.” Satterfield v.

       State, 33 N.E.3d 344, 352 (Ind. 2015). A trial court abuses its discretion if its

       decision is “against the logic and effect of the facts and circumstances before the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 6 of 14
       court.” Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015). We may affirm the

       trial court on a different basis than the court ruled, as long as the court’s

       ultimate decision was correct. Id. at 1290 n.3.


[12]   Baldwin asserts the trial court abused its discretion by excluding exculpatory

       evidence, which prohibited him from presenting his defense.

               Although a defendant’s right to present a defense is of the utmost
               importance, it is not absolute. The accused, as is required of the
               State, must comply with established rules of procedure and
               evidence designed to assure both fairness and reliability in the
               ascertainment of guilt and innocence.


       Id. at 1288 (internal quotations and citations omitted).


[13]   The evidence that Baldwin wanted to have admitted was evidence that, on the

       same night Houghton and Scheible were shot, Timothy Browers, the second

       man to whom Houghton had been apologizing that evening at the trap house,

       used a firearm to shoot at a car parked outside the trap house on Creston Drive

       while his girlfriend was asleep in that car. As an offer of proof, Baldwin

       presented testimony, outside the presence of the jury, of Detective Mark

       Howard who was investigating the shooting of a white Mazda on Creston

       Drive. Detective Howard testified Browers was the suspect in that shooting on

       Creston Drive, which occurred on the same night Houghton and Scheible were

       shot. However, Detective Howard also testified he had no information

       suggesting Browers was near Belmont Avenue when Houghton and Scheible

       were shot.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 7 of 14
[14]   The State argues the evidence of Browers shooting a gun outside the house on

       Creston Drive on the same night as the shootings at issue herein is not relevant

       to a determination of who shot Houghton and Scheible in the alley behind the

       house on Belmont Avenue. Evidence is “relevant” if:

               (a) it has any tendency to make a fact more or less probable than
               it would be without the evidence; and


               (b) the fact is of consequence in determining the action.


       Ind. Evidence Rule 401. If evidence is not relevant, then it “is not admissible.”

       Evid. R. 402.


[15]   The State notes there was “no evidence that Browers was present at Belmont,”

       (Appellee’s Br. at 21), and all the evidence indicated Browers possessed a semi-

       automatic weapon but “Houghton and [Scheible] were shot with a revolver.”

       (Id.) Based on those same facts, the State also argues Detective Howard’s

       testimony was not “exculpatory.” Exculpatory evidence is evidence that tends

       to clear a person of alleged guilt. Tibbs v. State, 59 N.E.3d 1005, 1013 (Ind. Ct.

       App. 2016), trans. denied. If evidence is not relevant, it cannot be exculpatory.

       Id.


[16]   In response, Baldwin notes “Scheible had testified that Mr. Browers had

       orchestrated or was involved in the incident at Belmont.” (Br. of Appellant at

       17.) Scheible did testify he believed Browers had something to do with his

       shooting; he also testified Browers had pointed guns at him earlier in the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 8 of 14
       evening at the trap house and he believed Browers was mad at Houghton for

       stopping to pick up Scheible on the way to the trap house.


[17]   Nevertheless, Baldwin has not demonstrated that Detective Howard’s

       testimony about Browers shooting a semi-automatic handgun at a car parked

       on Creston Drive would make more or less probable any fact of consequence to

       the determination of who shot Houghton or Scheible near Belmont Avenue,

       which was a five-minute drive away, when all the evidence indicted Houghton

       and Scheible were shot with a revolver, not a semi-automatic weapon. Nor

       would proof that Browers was involved in “orchestrating” the shooting of

       Houghton and Scheible relieve Baldwin of guilt for committing the actual

       shootings. Thus, we hold the trial court did not abuse its discretion when it

       excluded as irrelevant Detective Howard’s testimony about Browers shooting a

       semi-automatic handgun at a car parked on Creston Drive. See Tibbs, 59

       N.E.3d at 1013 (“The evidence Tibbs sought to introduce . . . was neither

       exculpatory nor relevant. None of the excluded evidence made it less probable

       that Tibbs murdered Rison or that McCarty was responsible for her murder as

       required under Rule of Evidence 401.”).


[18]   Moreover, there is no evidence of anyone but Baldwin shooting a gun in the

       alley behind Belmont Avenue at the relevant time. Scheible testified he was in

       the car when Baldwin shot Houghton in the head, and Warner testified he had

       never seen Scheible with a gun. Scheible testified Baldwin shot him repeatedly

       outside Baldwin’s car, and Warner testified he saw Baldwin shoot Scheible five

       times in the alley. Davis testified shots were fired and then Baldwin jumped

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 9 of 14
       into his car and told Davis to “go, go, go.” (Tr. Vol. 2 at 120.) Myers testified

       Baldwin repeatedly asked Myers to clean the two revolvers. Exclusion of

       evidence is harmless “if its probable impact on the jury, in light of all of the

       evidence in the case, is sufficiently minor so as not to affect the defendant’s

       substantial rights.” Montgomery v. State, 21 N.E.3d 846, 857 (Ind. Ct. App.

       2014), trans. denied. The evidence implicating Baldwin in the shootings of

       Houghton and Scheible was such that, even if the exclusion of Detective

       Howard’s testimony had been in error, it would have been harmless error for

       which we could not reverse his conviction. See Ind. Appellate Rule 66(A)

       (harmless errors are not grounds for reversal).


                                           Juror Misconduct
[19]   Baldwin also asserts the court abused its discretion when it denied his motion

       for mistrial.

               Because the trial court evaluates first-hand the relevant facts and
               circumstances at issue and their impact on the jury, it is in the
               best position to evaluate whether a mistrial is warranted. We
               accordingly review the trial court’s denial of a motion for mistrial
               for an abuse of discretion.


       Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015) (internal citations omitted), reh’g

       denied, cert. denied 136 S. Ct. 901 (2016). The court abuses its discretion when

       its 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).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 10 of 14
[20]   Baldwin’s motion was based on the foreperson of his jury, K.W., texting with

       attorney-friends on the evening between the second and third days of Baldwin’s

       trial about the burden of proof in a criminal case. In 2014, our Indiana

       Supreme Court clarified how Indiana courts should determine whether a

       mistrial is required in circumstances such as these:


               Defendants seeking a mistrial for suspected jury taint are entitled
               to the presumption of prejudice only after making two showings,
               by a preponderance of the evidence: (1) extra-judicial contact or
               communications between jurors and unauthorized persons
               occurred, and (2) the contact or communications pertained to the
               matter before the jury. The burden then shifts to the State to
               rebut this presumption of prejudice by showing that any contact
               or communications were harmless. If the State does not rebut
               the presumption, the trial court must grant a new trial. On the
               other hand, if a defendant fails to make the initial two-part
               showing, the presumption does not apply. Instead, the trial court
               must apply the probable harm standard for juror misconduct,
               granting a new trial only if the misconduct is “gross and probably
               harmed” the defendant. But in egregious cases where juror
               conduct fundamentally compromises the appearance of juror
               neutrality, courts should skip [the] two-part inquiry, find
               irrebuttable prejudice, and immediately declare a mistrial. 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.


       Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014).


[21]   The State concedes K.W.’s contact with attorney-friends about the burden of

       proof in the case for which she was a juror satisfies the two-part test from

       Ramirez and creates a presumption of prejudice that the State then had the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 11 of 14
       burden to rebut. 9 Baldwin asserts, first, that K.W.’s behavior was so egregious

       that the prejudice to him should be irrebuttable and, second, that if the

       prejudice is rebuttable, the trial court erred in finding the State rebutted the

       prejudice to him.


[22]   Baldwin argues K.W.’s behavior is akin to the facts in the three cases in which

       our Indiana Supreme Court has held the facts are so “egregious” that the

       prejudice to the defendant was irrebuttable – May v. State, 716 N.E.2d 419 (Ind.

       1999); Kelley v. State, 555 N.E.2d 140 (Ind. 1990); and Woods v. State, 233 Ind.

       320, 119 N.E.2d 558 (Ind. 1954), disapproved on other grounds by Ketcham v.

       State, 240 Ind. 107, 110-14, 162 N.E.2d 247, 248-50 (Ind. 1959). Our Indiana

       Supreme Court reversed May’s convictions for a new trial because irrebuttable

       prejudice arose when, at a restaurant during a lunch break in the middle of a

       witness’s cross-examination, that witness had a conversation with one of the

       jurors and the juror invited the witness to come to his house the next weekend

       for a social gathering. May, 716 N.E.2d at 422-23. In Kelley, irrebuttable

       prejudice arose when three of six jurors sat at lunch with the State’s witness

       because: “[d]espite the lack of clear evidence that the [witness] and the jurors

       discussed the trial proceedings and despite the three jurors’ assertions that their

       impartiality was intact, the enhancement of the credibility of the prosecution’s




       9
         In light of the broad reading our Indiana Supreme Court has given to that two-part test outlined in Ramirez,
       see Weisheit, 26 N.E.3d at 13-16 (two-part test met where juror’s wife attached the following note to cookies
       she baked for the jury: “Thank you for your service for the family of [the child victims of the alleged crime]. I
       will pray for you all to have strength and wisdom to deal with the days ahead. God bless!”), we appreciate
       the State’s explicit concession of this point at oral argument.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017                Page 12 of 14
       witness seems highly probable.” Kelley, 555 N.E.2d at 142. Woods’

       convictions were reversed for “prima facie prejudice” after the State’s witnesses

       visited with the jury during intermissions and recesses, even though no evidence

       suggested the witnesses and jurors discussed the case. Woods, 233 Ind. at 322-

       24, 119 N.E.2d at 560-61.


[23]   We disagree with Baldwin’s assertion that the facts herein are like those in

       Woods, Kelley, and May. K.W. did not interact with any witness such that her

       ability to be impartial when assessing witness credibility or weighing the

       evidence could be questioned. While her behavior was clearly inappropriate, it

       was not so egregious that it created an irrebuttable presumption of prejudice.

       See, e.g., Bisard v. State, 26 N.E.3d 1060, 1069 (Ind. Ct. App. 2015) (holding

       juror’s internet search on the reliability of blood test results, the results of which

       were shared with other jurors, did not fall into the category of cases where

       egregious behavior creates an irrebuttable presumption of prejudice), trans.

       denied.


[24]   Next, Baldwin argues the trial court abused its discretion when it concluded the

       State adequately rebutted the presumption of prejudice created by K.W.’s

       behavior. To rebut that presumption, the State had to show “any contact or

       communications were harmless.” Ramirez, 7 N.E.3d at 939. At the hearing on

       Baldwin’s motion for mistrial, K.W. testified she did not share her text

       conversations with the rest of the jury, she did not receive information from

       those conversations that conflicted with the trial court’s instructions, and she

       believed the jury rendered an impartial verdict based only on the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 13 of 14
       instruction defining reasonable doubt. “The trial court is in the best position to

       gauge the surrounding circumstances of an event and its impact on the jury, we

       will not second-guess the trial court in this regard.” Bisard, 26 N.E.3d at 1069.

       The record supports the trial court’s determination that Baldwin was not

       prejudiced by K.W.’s conversations with friends about the burden of proof, and

       we thus find no abuse of discretion therein. See id. (affirming trial court’s

       decision that removal of juror who committed misconduct was sufficient to

       alleviate any possible prejudice).



                                               Conclusion
[25]   The trial court did not abuse its discretion by excluding evidence that Browers

       shot his semi-automatic handgun at a car parked on Creston Drive on the same

       night that Scheible and Houghton were shot, as that evidence was neither

       relevant nor exculpatory and Baldwin cannot demonstrate he was harmed by its

       exclusion. Nor did the court abuse its discretion when it determined the State

       adequately rebutted the presumption that Baldwin was prejudiced by his jury

       foreperson’s contacting friends about the burden of proof in a criminal case.

       We accordingly affirm.


[26]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2025 | May 11, 2017   Page 14 of 14
