MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Aug 05 2020, 9:46 am

this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Martez Smith,                                            August 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3013
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1810-F4-34029



Baker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020                       Page 1 of 14
[1]   Martez Smith appeals his convictions for Level 4 Felony Unlawful Possession

      of a Firearm by a Serious Violent Felon,1 Level 3 Felony Aggravated Battery,2

      and Level 5 Felony Criminal Recklessness.3 He argues that the trial court (1)

      erred when it denied his motions for a mistrial and (2) violated Indiana’s double

      jeopardy principles by entering judgments of conviction for both aggravated

      battery and criminal recklessness. Finding no error, we affirm.


                                                     Facts
[2]   On August 18, 2018, couple Breana Guynn and Shyheim White were at their

      home in Indianapolis, where they had spent the day together. Around

      midnight, White’s brother and a friend of his came over to hang out with the

      couple. About an hour later, the group went together to the Rural Inn to buy

      some drinks and snacks; White drove Guynn in his car and the other two each

      drove separately. When they arrived at and entered Rural Inn, several people

      were already inside the store. White “bumped into” Smith as they walked past

      each other in the store and “some words [were] exchanged” between the two

      men. Tr. Vol. II p. 135. Smith then exited the store; White remained inside

      while he and Guynn finished their purchase.




      1
          Ind. Code § 35-47-4-5(c).
      2
          Ind. Code § 35-42-2-1.5.
      3
          I.C. § 35-45-2-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 2 of 14
[3]   Once outside, Smith repositioned his vehicle so that it was facing the exit of the

      store’s parking lot and then got out and stood near the vehicle. Meanwhile,

      White and Guynn had exited the store and walked back to White’s car in the

      parking lot. Smith briefly spoke with someone and then waited near his vehicle

      until another car showed up and stopped directly in front of Smith’s vehicle.

      Smith then quickly approached the driver’s side of this other vehicle before

      walking towards White’s car holding a gun.


[4]   As White walked to the back of his car to close his trunk, he noticed Smith

      standing in the parking lot. White and Guynn got back into White’s car and

      after White started the ignition, the couple heard “a bunch of gunshots,” id. at

      158, but “didn’t see anyone shooting” or “figure out where they [were] coming

      from,” id. at 136. White reversed the vehicle and proceeded to drive out of the

      parking lot. Smith walked back to his car and then quickly drove away from the

      scene.


[5]   As he drove away from the parking lot, White said he wanted to see if his

      brother was okay. Around the same time, Guynn “felt something wet, like a

      moist type of feel, and [she] just happened to look down and . . . realized [she]

      got shot” and that her legs “looked like they were exploded by fireworks.” Id. at

      136-37. Guynn called 911 while White drove them to a gas station nearby,

      where responding officers met them. The passenger side of White’s car was

      riddled with bullet holes; White’s brother’s car, which had been parked next to

      the driver’s side of White’s car, also had several bullet holes. Guynn had been

      shot multiple times in the legs and she was transported by ambulance to the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 3 of 14
      hospital. She remained at the hospital for two weeks but was not able to walk

      on her own for almost ten months, and still suffers from severe nerve damage,

      numbness, chronic pain, and difficulty walking.


[6]   Detectives reviewed the Rural Inn’s security camera footage and, using images

      from the video footage, issued a be-on-the-lookout notification (“BOLO”) for

      Smith that was disseminated throughout the police department. Kirstin Bryant,

      an employee with the probation department who had been Smith’s probation

      officer, contacted detectives after seeing the BOLO and identified Smith as the

      person in the images.


[7]   Officers executed a search warrant at Smith’s address but Smith refused to

      surrender himself or exit the residence, which resulted in a stand-off with law

      enforcement. Officers eventually quelled the situation and searched Smith,

      finding his cell phone. Officers also received a tip about a Crown Victoria that

      was registered to Smith and matched the vehicle used during the shooting. The

      vehicle was located at a different address and was covered with a tarp and had

      the license plate removed and the VIN covered. A search of the inside of the

      vehicle produced an electric bill in Smith’s name.


[8]   Next, detectives obtained search warrants for Smith’s cell phone and the cell

      phone records. A cell phone analyst created a map based on those records that

      showed the location of cell phone towers used to connect Smith’s phone around

      the time of the shooting and compared the cell tower locations to the location of




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 4 of 14
       the shooting and Smith’s address. This analysis showed that Smith’s phone was

       near the shooting location at the time the shooting occurred.


[9]    On October 4, 2018, the State charged Smith with Level 4 felony unlawful

       possession of a firearm by a serious violent felon, Level 5 felony battery by

       means of a deadly weapon, and Level 5 felony criminal recklessness. On

       January 11, 2019, the State added a charge of Level 3 felony aggravated battery

       and an habitual offender enhancement.


[10]   A jury trial was held November 8, 2019. Prior to trial, the trial court granted

       Smith’s motion in limine to prevent witnesses “from mentioning that [Smith]

       was on probation at the time of his arrest.” Appellant’s App. Vol. II p. 140. The

       parties agreed that Bryant could not “refer to herself as a probation officer” and

       that the word “probation” was not to be used, but that she could say “she

       worked for the court system, [and] she was supervising him as part of those

       duties.” Tr. Vol. II p. 5-6. However, during the State’s direct examination of

       Bryant, Bryant was describing a visit to Smith’s home in which she “knocked

       on the door, [she] was asked who it was, and [she] said it was Kirstin with

       probation.” Tr. Vol. III p. 36. Smith then objected and requested a mistrial

       based on the violation of the motion in limine.


[11]   The trial court denied the request for a mistrial, finding that Bryant’s statement

       that she was “Kirstin with probation” did not put Smith in a position of grave

       peril and was merely a “very quick passing reference to probation.” Id. at 45.

       The trial court issued the following limiting instruction to the jury:


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 5 of 14
               [D]uring the testimony of the witness who is testifying at this
               time, there may have been information that was presented that’s
               irrelevant to the issues as to guilt or innocence on the charges
               here today. You are directed and instructed by the Court to draw
               no inferences and make no reference to that information when
               you’re deliberating in this case. I see you all nodding, so I’m
               assuming you all will follow that instruction, so thank you.


       Id. at 48.


[12]   The State continued with its direct examination of Bryant, and eventually asked

       her, “[d]id you take notes when you were [a] probation officer?”; Bryant

       responded “I did, yes.” Id. at 54. Smith once again objected and requested a

       mistrial, but the trial court denied the request for the same reasons it denied the

       first request. The trial court offered to give another curative instruction to the

       jury, but Smith refused the additional instruction because he did not want to

       draw further attention to the issue. See id. at 55. At the conclusion of the trial

       the jury found Smith guilty as charged on all four counts. After Smith waived

       his right to a jury trial for the habitual offender enhancement, the trial court

       found him to be an habitual offender.


[13]   At the sentencing hearing held November 26, 2019, the trial court vacated the

       conviction for battery by means of a deadly weapon due to double jeopardy

       concerns. The trial court sentenced Smith to ten years for unlawful possession

       of a firearm by a serious violent felon, five years for criminal recklessness, and

       fifteen years for aggravated battery that was then enhanced by fifteen years for




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 6 of 14
       being an habitual offender, all to be served consecutively, for an aggregate term

       of 45 years imprisonment. Smith now appeals.


                                    Discussion and Decision
                                      I. Motions for Mistrial
[14]   Smith’s first argument on appeal is that the trial court erred when it denied

       Smith’s motions for mistrial. The decision of whether to grant a mistrial lies

       within the discretion of the trial court and we afford that decision great

       deference on appeal. McCollum v. State, 582 N.E.2d 804, 813 (Ind. 1991). “To

       prevail on appeal from the denial of a motion for mistrial, the appellant must

       establish that the questioned conduct ‘was so prejudicial and inflammatory that

       he was placed in a position of grave peril to which he should not have been

       subjected.’” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001) (quoting Gregory v.

       State, 540 N.E.2d 585, 589 (Ind. 1989)). The gravity of the peril is measured by

       the challenged conduct’s probable persuasive effect on the jury’s decision, not

       the impropriety of the conduct. Id. The question is not whether the absence of

       this persuasive effect would lead to an acquittal instead of conviction, but rather

       whether “the evidence is close and the trial court fails to alleviate the prejudicial

       effect.” Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991). “Even where an

       isolated instance of misconduct does not establish grave peril, if repeated

       instances evidence a deliberate attempt to improperly prejudice the defendant, a

       reversal still may result.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 7 of 14
[15]   Here, Smith argues that the trial court improperly denied his motions for

       mistrial when the State violated the motion in limine by making “repeated

       references to Smith’s probation status.” Appellant’s Br. p. 13. Even with the

       curative instruction given the jury, Smith claims that the statements and the

       “rapid succession” in which they were made caused a probable and significant

       effect on the jury. Appellant’s Reply Br. p. 5.


[16]   We agree with both parties that there were two clear violations of the motion in

       limine here—first, when Bryant testified that she had said she was “Kirstin with

       probation” at a prior interaction with Smith, and second, when the State asked

       her moments later if she took notes when she was a probation officer. Tr. Vol.

       III p. 36, 54. The question, then, is whether these violations, given the other

       facts, placed Smith in grave peril and had a probable persuasive effect on the

       jury.


[17]   We hold that they did not. With regards to the first statement, when Bryant

       stated that she was “Kirstin with probation,” she did not specifically state that

       Smith himself was on probation, state that she was his probation officer, or

       provide any further information about Smith’s probation. The question that

       prompted this response—asking Bryant “what happen[ed]” when she knocked

       on the door at Smith’s residence—was also broad and open ended, with no

       indication that it was specifically designed to elicit the statement in violation of

       the motion in limine. Id. at 36. When combined with the curative instruction

       and admonishment to the jury regarding this portion of the testimony, the trial

       court did not err in denying the mistrial and concluding that Smith was not put

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 8 of 14
       in grave peril by the statement. See, e.g., Banks v. State, 761 N.E.2d 403, 405

       (Ind. 2002) (finding that the trial court’s admonishment to the jury to disregard

       a witness’s remark about defendant’s prior unrelated criminal act sufficiently

       dispelled any grave peril and justified denial of the motion for mistrial); James v.

       State, 613 N.E.2d 15, 22 (Ind. 1993) (“A timely and accurate admonition is

       presumed to cure any error in the admission of evidence.”).


[18]   We likewise find that Smith was not placed in grave peril by the denial of a

       mistrial with regards to the second violation of the motion in limine. We agree

       with Smith to the extent that the second reference to probation, being made by

       the State itself as part of its examination of Bryant, let alone “on the heels of a

       lengthy discussion about a mistrial” based on the same word choice moments

       prior, is inexcusable and “should not be countenanced.” Appellant’s Br. p. 13.

       But even so, our inquiry is limited to whether the statement had a probable

       persuasive impact on the jury, which it did not.4 First, like the first statement

       about probation, this question referencing Bryant’s work as a probation officer

       did not specifically mention or provide details of Smith’s own probation.




       4
         Following Smith’s objection to the State’s question referring to Bryant as a “probation officer,” the State
       immediately apologized, claiming “I didn’t even know I said it. I’m sorry—I’m sorry, if I did. I think that the
       same analysis [as the first motion for mistrial] applies, but I can do nothing but offer apologies to you. I’m
       sorry.” Tr. Vol. III p. 54. The State also did not object to the trial court’s offer of a second curative
       instruction. We understand that this second reference to probation may very well have been an innocent
       mistake, and fortunately in the instant case it did not cause any reversible error. Nonetheless, we urge and
       expect counsel in such situations to take better care to comply with court-imposed limitations—especially in
       the immediate wake of a lengthy and explicit discussion about the exact same issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020                     Page 9 of 14
[19]   Further, contrary to Smith’s arguments, there was strong and ample evidence of

       Smith’s guilt such that the State’s two references to probation, however

       avoidable and unnecessary they may have been, failed to create any significant

       prejudice and put Smith in grave peril. “On appeal, where the jury’s verdict is

       supported by independent evidence of guilt such that we are satisfied that there

       was no substantial likelihood that the evidence in question played a part in the

       defendant’s conviction, any error in admission of prior criminal history may be

       harmless.” James, 613 N.E.2d at 22. Here, the State presented video evidence

       and still photos of the shooting and of the shooter in the moments leading up to

       the shooting, which the jury was able to view and evaluate as to whether Smith

       was the shooter in question. The State also presented evidence that Smith’s cell

       phone was located near the crime scene before and during the shooting, that he

       owned a vehicle matching the one driven by the shooter, and that the vehicle

       was found hidden at another residence. See Pittman v. State, 885 N.E.2d 1246,

       1255 (Ind. 2008) (finding that a witness’s “implicit reference to [defendant’s]

       prior incarceration” likely did not have significant effect on jury in light of all

       other evidence presented against the defendant).


[20]   In sum, though we do not endorse the easily avoidable references to probation,

       we nevertheless find that the trial court did not err when it denied Smith’s

       motions for mistrial. In light of the initial curative instruction and the other

       evidence against Smith, we think the passing references to probation did not

       place Smith in grave peril or have any significant persuasive effect on the jury.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 10 of 14
                                        II. Double Jeopardy
[21]   Next, Smith argues that the two convictions for aggravated battery and criminal

       recklessness violate double jeopardy principles. More specifically, he contends

       that the two offenses were based on the same evidence of gunshots fired at

       Guynn in the Rural Inn parking lot.


[22]   Under Article 1, Section 14 of the Indiana Constitution, “no person shall be put

       in jeopardy twice for the same offense.” In reviewing double jeopardy claims,

       “two or more offenses are the ‘same offense’ in violation of Article 1, Section 14

       of the Indiana Constitution, if, with respect to either the statutory elements of

       the challenged crime or the actual evidence used to convict, the essential

       elements of one challenged offense also establish the essential elements of

       another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)

       (emphases in original). Under the actual evidence test, which Smith invokes

       here, the defendant must show a “reasonable probability” that the evidentiary

       facts used by the jury to establish all of the elements for one offense also were

       used to establish all—not just one or some—of the elements of a second offense.

       Id. at 53.


[23]   To convict Smith of Level 3 felony aggravated battery, the State was required to

       prove that Smith “knowingly or intentionally inflict[ed] injury on a person that

       create[d] a substantial risk of death or cause[d] . . . (2) protracted loss or

       impairment of the function of a bodily member or organ[.]” I.C. § 35-42-2-1.5.

       To convict Smith of Level 5 felony criminal recklessness, the State was required


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 11 of 14
       to prove that Smith “recklessly, knowingly, or intentionally perform[ed] an act

       that create[d] a substantial risk of bodily injury to another person.” I.C. § 35-42-

       2-2.


[24]   Here, the State proved aggravated battery by showing that Smith fired multiple

       gunshots that struck Guynn and caused her the requisite injury and impairment.

       It then proved criminal recklessness by demonstrating that Smith fired

       additional gunshots—importantly, ones that did not also strike Guynn—

       towards White, White’s brother, and his brother’s friend while in a parking lot

       full of multiple other people in close vicinity. Smith claims that the State relied

       on the evidence of the injury to Guynn that proved aggravated battery to also

       prove the “substantial risk of bodily injury” element required for criminal

       recklessness. As such, he argues, the same evidence of the same act—firing

       gunshots that injured Guynn—was relied upon by the jury to establish each

       element of the two offenses.


[25]   We disagree. At no point did the State posit that the same bullets or gunshots

       that injured Guynn were the same ones that posed a substantial risk of bodily

       injury to White, his brother, his brother’s friend, and other bystanders in the

       parking lot. Rather, the State produced evidence showing that Smith fired an

       assault rifle numerous times indiscriminately, aiming at Guynn as well as the

       others, and that there were several other people in the parking lot in plain view

       of Smith.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 12 of 14
[26]   To support his claim that the same evidence was used for both convictions,

       Smith points to the State’s statement during closing argument that for the

       criminal recklessness offense, Smith “recklessly created a substantial risk of

       bodily injury . . . by shooting a firearm in a parking lot full of people at a

       business there. . . . And not only a substantial risk of bodily injury, we know for

       a fact, because you heard testimony [that] Breana Guynn was injured. No

       substantial risk there at all, she was injured.” Tr. Vol. III p. 116. But rather than

       invoking the same evidence to prove both offenses, this statement merely shows

       a closing attempt by the State to define the risk of substantial bodily injury to

       the others in the parking lot by reference to the fact that Guynn actually was

       injured by other gunshots Smith fired. See Wilcoxson v. State, 132 N.E.3d 27, 33

       (Ind. Ct. App. 2019) (finding no double jeopardy violation for two attempted

       murder convictions where defendant fired sixteen different shots at two separate

       law enforcement officers), trans. denied.


[27]   Smith also relies heavily on our decision in Stewart v. State, 866 N.E.2d 858

       (Ind. Ct. App. 2007), a case in which we found that the defendant’s dual

       convictions of attempted battery and criminal recklessness violated double

       jeopardy principles. In Stewart, this Court found that the two convictions were

       based on the same single act of firing at a vehicle with several people inside and

       that the State failed to make any meaningful distinction between which

       gunshots supported attempted battery versus criminal recklessness for the same

       group of victims. Id. at 864-65. Smith’s case, however, is readily distinguishable

       in that the State presented evidence that Smith fired gunshots that struck and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 13 of 14
       injured Guynn and separate gunshots that posed a substantial risk of injury to

       others.


[28]   We therefore find no double jeopardy violation and hold that the trial court did

       not err in entering judgments of conviction for both aggravated battery and

       criminal recklessness.


[29]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3013 | August 5, 2020   Page 14 of 14
