MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Oct 04 2017, 8:10 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
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darryl Leigh Kilgore, Jr.,                               October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1704-CR-882
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1501-FB-1



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017         Page 1 of 8
                                             Case Summary
[1]   Following a jury trial, Darryl Leigh Kilgore, Jr., appeals his conviction for class

      B felony robbery resulting in bodily injury. He argues that the trial court erred

      in denying his motion for mistrial following an unprompted remark by his ex-

      girlfriend. We find no error and therefore affirm.


                                 Facts and Procedural History
[2]   Around 8:30 a.m. on June 27, 2014, octogenarian Kenneth Meier walked from

      his home to the nearby commuter train station in Hammond, got a newspaper

      on the platform, and started walking homeward. An African-American male

      “got behind [him] and put [him] in a bear hug.” Tr. Vol. 1 at 24. Meier yelled

      for help. The man lifted Meier up and pushed him down onto the platform.

      The man then grabbed Meier’s wallet, containing over $100 in cash, out of his

      left front pants pocket and “took off” down the platform. Id. Meier suffered

      “bad scratch[es]” on his elbow and back during the assault. Id. at 25. Meier

      did not see his assailant’s face.


[3]   Meier’s neighbor, Nancy Roberts, was outside her home preparing for a yard

      sale with her friend Jean Wells when she heard Meier’s cries for help. Roberts

      ran to the train station and saw a “husky” black male running down the

      platform stairs. Id. at 64. She “looked up at him” and “saw his face and eyes.”

      Id. at 44, 72. Roberts moved aside “so he could run down and [she] ran up” the

      stairs and helped the “banged up” Meier off the ground. Id. at 44, 45. Wells,

      who was approximately 300 to 400 feet away, saw a “husky” black male in


      Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017   Page 2 of 8
      profile as he “[ran] down the stairs of the platform and [took] off running down

      the street going south.” Id. at 86, 76. Roberts and Wells provided a description

      of the man to Northern Indiana Commuter Transportation District (“NICTD”)

      police, who distributed security camera footage of the robbery to local media

      “to seek[] the public’s help and assistance in identifying the suspect.” Id. at 95.


[4]   On June 28, Kilgore’s ex-girlfriend, Michelle Cleveland, who had dated him

      “off and on” for approximately eight months, saw video and a still image from

      the security footage on television. Id. at 126. She called NICTD Police

      Sergeant Howard Morgan and identified the robbery suspect as Kilgore based

      on the distinctive markings of name-brand jeans and shoes that she had bought

      for him, a “gray cut-off shirt he always wore[,]” the way he walked, and the

      way he carried his left arm due to an injury. Id. at 123.


[5]   On July 1, Kilgore called NICTD Police Chief Robert Byrd and said that “he

      wanted to clear his name.” Id. at 96. Kilgore said that he had been at the

      Hammond station on June 26 between 2:00 and 3:00 p.m. and that if police

      “reviewed the security camera videos at the station that he would be easily

      identifiable because he was wearing a black t-shirt with … large white letters on

      the shirt that said Arsenal Tech.” Id. at 97. Sergeant Morgan reviewed the

      Hammond station camera footage from 1:00 to 4:00 p.m. on June 26 and “did

      not see anybody wearing that kind of clothing either inside the station” or “on

      the platform.” Id. at 164. Sergeant Morgan reported this to Kilgore, who said

      that “possibly” he had been at the East Chicago station. Id. Sergeant Morgan



      Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017   Page 3 of 8
      reviewed the camera footage from that station “and again did not see anybody

      wearing that type of clothing.” Id. at 165.


[6]   With the assistance of a Hammond police detective, Sergeant Morgan

      developed an array containing frontal photos of six different men, including

      Kilgore. The sergeant showed the array to Roberts on July 5 and Wells on July

      9. He told them that he


              want[ed] them to look at the series of pictures, if they recognize
              anybody. The person [police] are looking for may or may not be
              on there and not to get too caught up on hairstyles in case
              anything has changed, and … to basically look at facial features,
              eyes, things like that.


      Id. at 167. According to Sergeant Morgan, Wells “immediately” identified

      Kilgore as the person she had seen on June 27, and Roberts also identified

      Kilgore “as the offender that she saw.” Id. at 160, 161-62.


[7]   The State charged Kilgore with class B felony robbery resulting in bodily injury.

      At Kilgore’s jury trial, the State called Cleveland as a witness and asked her

      about a phone conversation that she had with Kilgore on June 26. Cleveland

      replied, “Well, he needed a job and he needed a card from the office in Miller,

      so he asked if I could come and get him. I stated no, I cannot, because there’s

      drug activity in the home.” Id. at 115. Kilgore’s counsel objected and moved

      for a mistrial, acknowledging his belief that not “by any stretch of the

      imagination did the prosecutor prompt this.” Id. at 116. The trial court denied

      the motion but admonished the jury as follows:


      Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017   Page 4 of 8
               That last comment by the witness was absolutely unsolicited by
               the state. It was quite frankly improper. This case has nothing to
               do with drug usage, drug activity, drug anything whatsoever.
               That comment should not, and I’m instructing you that it will
               not enter into your discussions at any regard in further discussion
               about this case. Whether it’s during these breaks where you are
               allowed to discuss this case at all or during deliberations when
               you finally receive the case, this comment should not in any
               regard influence you on any issue involved in this case. It’s a
               robbery case, robbery allegation. It was not evidence, and I am
               striking that from your consideration. Please keep this in mind as
               we move forward.


       Id. at 119-20.


[8]    Following this admonition, Cleveland testified that Kilgore called her on June

       26. He asked her to pick him up at the Miller train station on June 27 and said

       that he would give her a call. Cleveland “didn’t hear from him” until around

       9:30 a.m. on June 27, when he called her “and said he went for a run because

       he was out of breath.” Id. at 121. Kilgore “said he had money” and wanted

       Cleveland to pick him up because he could pay for her gas, but she refused. Id.

       at 125.


[9]    The jury found Kilgore guilty as charged, and the trial court sentenced him to

       eight years executed. This appeal followed.


                                      Discussion and Decision
[10]   Kilgore contends that the trial court erred in denying his motion for mistrial. A

       mistrial is an extreme remedy that is justified only when other remedial


       Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017   Page 5 of 8
measures are insufficient to rectify the situation. Shouse v. State, 849 N.E.2d

650, 655 (Ind. Ct. App. 2006), trans. denied. “On appeal, the trial judge’s

discretion in determining whether to grant a mistrial is afforded great deference

because the judge is in the best position to gauge the surrounding circumstances

of an event and its impact on the jury.” Id. Therefore, we review the trial

court’s decision solely for an abuse of discretion. Id. “An abuse of discretion

occurs when the trial court’s 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). To prevail on appeal, Kilgore must demonstrate that

Cleveland’s statement was so prejudicial and inflammatory that he was placed

in a position of grave peril to which he should not have been subjected. Norton

v. State, 785 N.E.2d 625, 627 (Ind. Ct. App. 2003).1 “To determine the gravity

of peril, an appellate court considers the probable persuasive effect of the

misconduct on the jury’s decision, not the degree of impropriety of the conduct.

Generally, a timely and accurate admonition is an adequate curative measure

for any prejudice that results.” Id. (citation omitted). “We seldom find

reversible error when the trial court admonishes the jury to disregard [a]

statement made during the proceedings.” Davidson v. State, 580 N.E.2d 238,

241 (Ind. 1991).




1
  The parties disagree about whether Cleveland’s statement constitutes an evidentiary harpoon, but they
agree that the prosecutor did not intentionally elicit the statement. Therefore, we need not resolve the
terminology dispute.

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[11]   Kilgore argues that the trial court’s admonition in this case “was not sufficient

       to overcome the taint of the allegation” that he was involved in drug activity

       because “[t]he State’s case was entirely based” on what he characterizes as

       “suspect eyewitness identifications.” Appellant’s Br. at 11, 12. We first

       observe that Cleveland’s statement was brief and did not implicate Kilgore

       directly in drug activity or describe that activity in any detail. We further

       observe that the State’s case was also based on Cleveland’s identification of

       Kilgore from the security footage, as well as the police officers’ testimony about

       Kilgore’s attempt to clear his name, which did not pan out as well as Kilgore

       might have hoped. Kilgore criticizes the clarity of the footage and questions

       Cleveland’s ability to recognize his clothing, but we note that Cleveland also

       based her identification on Kilgore’s gait and the posture of his left arm. The

       jurors were able to see the footage for themselves and evaluate Cleveland’s

       credibility accordingly.


[12]   Likewise, the briefness of Roberts’s encounter with Kilgore, Wells’s distance

       from and profile view of Kilgore, and the alleged suggestiveness of the photo

       array regarding the subjects’ physiques and clothing were all thoroughly

       explored before the jury on direct, cross, and redirect examination. Kilgore

       disregards Roberts’s testimony that she “saw his face and eyes” as he ran down

       the platform stairs, Sergeant Morgan’s testimony that Wells “immediately”

       identified Kilgore as the robbery suspect in the photo array, and Cleveland’s

       testimony that Kilgore called her shortly after the robbery and said that he had

       money and was out of breath from running. Tr. Vol. 1 at 72, 160.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1704-CR-882 | October 4, 2017   Page 7 of 8
[13]   Based on the foregoing, we conclude that the probable persuasive effect of

       Cleveland’s brief statement on the jury’s decision was minimal. We further

       conclude that the trial court’s prompt and thorough admonition instructing the

       jury to disregard Cleveland’s statement cured any resulting prejudice.

       Therefore, we conclude that the trial court did not abuse its discretion in

       denying Kilgore’s motion for mistrial. His conviction is affirmed.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




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