      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                FILED
      court except for the purpose of establishing                        Dec 19 2017, 8:06 am

      the defense of res judicata, collateral                                  CLERK
      estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Cara S. Wieneke                                         Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                 Attorney General of Indiana
      Brooklyn, Indiana
                                                              Henry A. Flores, Jr.
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      John Dickson, II,                                       December 19, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              84A01-1611-CR-2705
              v.                                              Appeal from the Vigo Superior
                                                              Court
      State of Indiana,                                       The Honorable John T. Roach,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              84D01-0802-FB-725
                                                              84D01-1404-FB-899



      Mathias, Judge.


[1]   John Dickson, II (“Dickson”) appeals his convictions for Class B felony sexual

      misconduct with a minor and Class A misdemeanor public indecency. Dickson

      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017     Page 1 of 9
      argues that the trial court abused its discretion when it failed to examine a juror

      about potential bias.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Around 1:00 a.m. on April 2, 2014, thirty-six-year-old Dickson picked up

      fifteen-year-old F.F. from outside her mother’s home in his white Ford

      Expedition (“Expedition”). Dickson had previously been romantically involved

      with F.F.’s older sister Katy, and he told F.F. that night that they were going to

      go look for Katy. Dickson drove the two around for several minutes before he

      eventually stopped the Expedition on a dimly lit side street.


[4]   At approximately 2:00 a.m., Terre Haute Police Department Officer Brian

      Bourbeau (“Officer Bourbeau”) was dispatched to an intersection near

      Dickson’s parked vehicle due to a report of individuals knocking over trash cans

      and a basketball hoop. While Officer Bourbeau was surveying the area, he came

      across Dickson’s parked Expedition and he illuminated the vehicle using the

      spot light on his patrol car. Officer Bourbeau noticed a person pop up in the

      backseat of the Expedition and then immediately pop back down. He exited his

      patrol vehicle, approached the driver side window, and shone his flashlight into

      the interior of the Expedition. Officer Bourbeau saw Dickson and F.F. in the

      backseat unclothed; he also observed Dickson on top of F.F. and that Dickson’s

      penis was erect. He instructed Dickson and F.F. to get dressed and to move to

      the front of the vehicle.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 2 of 9
[5]   Once Officer Bourbeau was able to speak with F.F. privately and discern that

      she was only fifteen, Dickson was arrested. The State charged Dickson with

      Class B felony sexual misconduct with a minor, Class B felony attempted

      sexual misconduct with a minor, and Class A misdemeanor public indecency.


[6]   A three-day jury trial commenced on August 29, 2016. After the evidence was

      presented and the jury had been deliberating for approximately four hours, the

      foreperson notified the bailiff that the jury was at an impasse because of a

      “holdout.” Tr. Vol. V, p. 141. The foreperson told the bailiff that the holdout

      (the “holdout juror”) had indicated to the jury that she had “similar experiences

      to the alleged victim.” Id. The bailiff immediately notified the trial court;

      however, while the trial court was gathering both parties to explain the

      situation, the jury informed the bailiff it had reached a verdict. As a result, the

      trial court gave each side “about thirty minutes to do some research, tell me

      how you want to proceed.” Id.


[7]   After reconvening, Dickson’s counsel moved for a mistrial, and the trial court

      denied it stating:


              I have not found any authority to question jurors once they said
              they have reached a verdict. I have not found any authority to
              start questioning the jurors as to their deliberations. I think it is
              improper to do that. . . . Um, we don’t have any evidence of
              misconduct, now that we have been told we have a verdict. So I
              don’t think I can declare a mistrial at this point.


      Id. at 146–47. Dickson’s counsel then asked the court if the jury indicated

      whether or not it had a problem before it reached its verdict. The court
      Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 3 of 9
       responded, “The only thing the Jury said was we are deadlocked, we have a

       hold out, and the hold out just now said she had similar experiences to the

       victim, that’s all she said.” Id. at 147. Thereafter, the trial court called the jury

       back in, and the jury found Dickson guilty of all charges.1


[8]    At Dickson’s sentencing hearing on October 26, the trial court merged the Class

       B felony misconduct with a minor with the Class B felony attempted sexual

       misconduct with a minor. The trial court then sentenced Dickson to concurrent

       terms of fifteen years for the Class B felony and one year for the Class A

       misdemeanor public indecency. The trial court also revoked seven years of a

       prior suspended sentence,2 and thus Dickson was sentenced to a total of twenty-

       two years executed in the Department of Correction.


[9]    On November 21, Dickson filed a motion to correct error arguing that his Sixth

       Amendment right to a fair and impartial jury was infringed when the court

       declined to remove the holdout juror who expressed she had encountered

       “similar experiences to the victim.” On December 21, the trial court denied

       Dickson’s motion to correct error. Dickson now appeals.


                                          Discussion and Decision
[10]   Indiana Trial Rule 47 explains, “Alternate jurors . . . shall replace jurors who,

       prior to the time the jury returns its verdict, become or are found to be unable or



       1
           Each juror was polled individually and affirmed each verdict as their own. Tr. Vol. V, pp. 152–54.
       2
           Dickson was on probation at the time he committed the instant offenses.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017            Page 4 of 9
       disqualified to perform their duties.” (emphasis added). A trial court has broad

       discretion to remove a juror before deliberations begin, but removing a

       dissenting juror after that point implicates the defendant’s right to a unanimous

       verdict and the defendant’s right to a jury trial. Riggs v. State, 809 N.E.2d 322,

       327 (Ind. 2004).


[11]   Although removing a juror after deliberations have begun is ultimately a matter

       requiring deference to the trial court’s judgment, it raises a number of

       considerations not present before deliberations begin. Id. As a result, once

       deliberations have begun, the discharge of a juror is warranted only in the most

       extreme situations where it can be shown that the removal of the juror: (1) is

       necessary for the integrity of the process, (2) does not prejudice the deliberations

       of the rest of the panel, and (3) does not impair the party’s right to a trial by

       jury. Id. at 327–28. Additionally, our supreme court has noted that the “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).


[12]   Dickson contends that the trial court abused its discretion when it failed to hold

       a hearing and examine the holdout juror under oath to determine whether her

       similar experience to that of the alleged victim left her incapable of rendering a

       fair verdict. We disagree.


[13]   Here, the trial court was told that the jury had reached a verdict before it was

       able to gather both parties. Thus, the trial court never had a suitable


       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 5 of 9
       opportunity to question the holdout juror. Indiana Trial Rule 58(A) commands

       the actions the trial court took as the rule states, “upon a verdict of a jury . . .

       the court shall promptly prepare and sign the judgment.” The court explained

       the situation when it denied Dickson’s motion to correct error:


               After reporting a “deadlock,” the jury obviously continued to
               deliberate while waiting for a response from the court, which was
               held up while the parties re-assembled in court. In the interim,
               the jury was able to reach verdicts. The first note itself did not
               reveal any wrongdoing or impropriety on the part of the
               “holdout.” The presumption is the jury followed the court’s
               instructions, and resolved their “deadlock” when they completed
               the guilty verdict forms for each count, and destroyed the forms
               not reflecting their vote.


       Appellant’s Supp. App. Vol. III, p. 6.


[14]   The situation here is factually distinguishable from the cases which Dickson has

       cited. In Gavin v. State, a panel of this court held that the trial court abused its

       discretion when it removed a juror based on an inaccurate note from the juror

       stating that he could not reach a decision. 671 N.E.2d 440, 447 (Ind. Ct. App.

       1996). In that case we explained, “It may reasonably be inferred from the

       record that, at the point the note was written, the jury was deadlocked eleven to

       one. Had [the juror] not been dismissed and replaced with an alternate, there

       likely would have been, at the very least, a hung jury.” Id.


[15]   It can be reasonably inferred here that the jury was deadlocked eleven to one at

       the time the foreperson told the bailiff that there was a “holdout” who had

       “similar experiences to the alleged victim.” Thus, Gavin does not apply because

       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 6 of 9
       by the time the trial court was able to gather the necessary parties, the jury had

       reached a verdict. This is not a case where a juror was dismissed, and there was

       no point at which the trial court could have questioned the holdout juror had it

       wanted to; the jury had reached its verdict by the time the court gathered both

       parties to explain the situation. See Lewis v. State, 424 N.E.2d 107, 111 (Ind.

       1981) (holding that when a jury is deadlocked “[t]he proper procedure is for the

       court to call the jury back into open court in the presence of all of the parties

       and their counsel . . . .”).


[16]   Dickson also cites to this court’s decisions in Wright v. State, 12 N.E.3d 314,

       (Ind. Ct. App. 2014) and Scott v. State, 829 N.E.2d 161 (Ind. Ct. App. 2005) to

       support his argument. In Wright, we held the trial court abused its discretion

       when it removed a juror who had come to a not-guilty decision because he

       believed the victim lied. 12 N.E.3d at 319. In Scott, we found the trial court

       abused its discretion when it removed a juror prior to deliberations who had

       “reached a different conclusion than the other jurors based upon his own life

       experiences.” 829 N.E.2d at 168. Here, the holdout juror reached a decision.

       She never intimated that she would not change her mind, see Wright, 12 N.E.3d

       at 320, or that she could not reach a decision because of her life experiences, see

       Scott, 829 N.E.2d at 168. And even if she had, removal based on those

       circumstances alone would have been improper. Id.; Wright, 12 N.E.3d at 319.


[17]   Dickson also argues that the trial court abused its discretion when it did not

       sequester the holdout juror immediately after learning that she had similar

       experiences to F.F. We initially note that the trial court would have erred had it

       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 7 of 9
       questioned the holdout juror outside of the presence of both parties. Nichols v.

       State, 591 N.E.2d 134, 138 (Ind. 1992). As soon as the court learned of the

       holdout juror and her comments, it attempted to gather both parties together for

       consultation, but by the time they had arrived in the courtroom, the jury had

       reached its verdict.


[18]   And even if the trial court was permitted to sequester the holdout juror

       immediately, it was under no obligation to do so. Instead, “the trial court is

       obligated to take the remedial action of interrogating the jury only if the court

       determines, in its discretion, that the risk of prejudice appears substantial, as

       opposed to imaginary or remote only.” Agnew v. State, 677 N.E.2d 582, 584

       (Ind. Ct. App. 1997), trans. denied (citations and quotations omitted). The trial

       court determined that the holdout juror’s similar situation to the alleged victim

       did not prejudice Dickson when it stated, “The first note itself did not reveal

       any wrongdoing or impropriety on the part of the ‘holdout.’” Appellant’s Supp.

       App. Vol. III, p. 6. Because the court determined there was no impropriety, and

       because the jury reached a verdict, the trial court had no responsibility to

       interrogate the jurors or to take other remedial action. See Isaacs v. State, 673

       N.E.2d 757, 761–62 (Ind. 1996) (holding that a juror’s remarks to the jury about

       her personal experience as a rape victim did not raise an issue of jury

       impropriety).


[19]   Moreover, the trial court stated that it would have called the jury in and done

       what Dickson requested if the jury had not first reached a verdict. The court

       explained:

       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 8 of 9
               As we were waiting to figure out what we were going to do, we
               got a call back that said, we have a verdict. So, it, ordinarily if a
               jury calls in says we are deadlocked, I would bring them in and
               say, keep deliberating, and we would give them a chance to work
               through the deadlock. What we have right now, sitting here right
               now, is a message that they have worked through the deadlock
               and they have a verdict.


       Tr. Vol. V, p. 147. There is no evidence that the holdout juror prejudiced

       Dickson’s rights in any way; instead, the jury was able to work through its

       deadlock and reach a unanimous verdict. The court aptly stated at the time, “I

       think to do anything other than to take the verdict and poll the Jury and

       proceed accordingly is, poses more problems than it potentially solves, because

       we have a verdict.” Id. at 149. There was no basis for the trial court to question

       the holdout juror after a verdict was reached, and as such, the court did not

       abuse its discretion by failing to do so.


                                                 Conclusion
[20]   Based on these facts and circumstances, we conclude that the trial court did not

       err by failing to interrogate the holdout juror after a verdict had been reached,

       or take any other remedial action. Therefore, the trial court did not abuse its

       discretion when it denied Dickson’s motion to correct error.


[21]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1611-CR-2705 | December 19, 2017   Page 9 of 9
