MEMORANDUM DECISION                                           FILED
                                                          Jun 17 2016, 8:35 am

Pursuant to Ind. Appellate Rule 65(D),                        CLERK
this Memorandum Decision shall not be                     Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court
regarded as precedent or cited before any
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
John C. Bohdan                                           Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Trayshaun J. Pernell,                                    June 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1508-CR-1087
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1411-F1-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016   Page 1 of 11
                               Case Summary and Issues
[1]   Following a joint jury trial, Trayshaun Pernell and his co-defendant, Kulon

      Lewis, were each convicted of attempted murder while using a firearm. The

      trial court sentenced Pernell to forty years in the Indiana Department of

      Correction on the attempted murder conviction and enhanced his sentence by

      twenty years pursuant to Indiana Code section 35-50-2-11. Pernell appeals his

      conviction and sentence, raising three issues for our review, which we restate as

      (1) whether the trial court abused its discretion in consolidating his trial with

      Lewis’, (2) whether the trial court abused its discretion in denying Pernell’s

      motion for mistrial, and (3) whether the firearm sentencing enhancement as

      applied to Pernell is improper as a matter of law. Concluding the trial court did

      not abuse its discretion in joining the two defendants and in denying Pernell’s

      motion for mistrial, but did err in enhancing Pernell’s sentence, we affirm in

      part, reverse in part, and remand with instructions for the trial court to vacate

      the sentencing enhancement.



                            Facts and Procedural History
[2]   On September 4, 2014, Dytrell Allen was shot multiple times outside a house in

      Fort Wayne. The first bullet struck Allen as he was exiting the house and

      walking toward his girlfriend’s car. After the first shot, Allen fell to the ground

      and crawled to the side of the car. Allen was laying on his back, unable to

      move, when he saw Lewis walk around the car. Lewis shot Allen several more

      times and walked away. Then, Pernell walked around the car and shot Allen in

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016   Page 2 of 11
      the face, shattering his jaw. Lewis and Pernell fled the scene. Allen survived

      the encounter but was left paralyzed from the waist down.


[3]   On November 25, 2014, the State charged Pernell with attempted murder as a

      Level 1 felony, aggravated battery as a Level 3 felony, and a firearm

      enhancement pursuant to Indiana Code section 35-50-2-11. Under a separate

      cause number, the State charged Lewis with the same offenses as Pernell. The

      State filed a Motion to Consolidate Lewis’ case with Pernell’s for trial, and

      Pernell filed a Memorandum in Opposition to Motion to Consolidate.

      Following a hearing, the trial court granted the State’s motion and scheduled

      trial for June 9, 2015.


[4]   Prior to trial, each party filed a Notice of Alibi. At trial, Pernell again objected

      to the causes being joined, which the trial court overruled. Pernell testified he

      was with friends and family on the afternoon the shooting took place; Pernell

      claimed he was not with Lewis. Lewis testified he was with a separate group of

      friends and family that afternoon; Lewis claimed he was not with Pernell.

      Shortly after the jury commenced deliberations, the bailiff notified the trial

      court the jury was utilizing a Fort Wayne street map that had not been admitted

      into evidence. The trial court ordered the bailiff to the remove the map, which

      the jury had already marked on. Pernell moved for mistrial. The trial court

      then individually questioned and admonished each juror. Each juror indicated

      he or she could disregard the map and base his or her decision only upon the

      evidence admitted at trial. Pernell renewed his motion for mistrial, which the

      trial court denied. The trial court then assembled the jurors, admonished them

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      as a group, and ordered them to resume deliberations. The jury found Pernell

      guilty as charged, and the trial court entered judgment of conviction for

      attempted murder. The trial court sentenced Pernell to forty years in the

      Department of Correction, enhanced by twenty years based on his use of a

      firearm in the commission of the offense. This appeal ensued.



                                   Discussion and Decision
                                             I. Consolidation
[5]   Pernell contends the trial court abused its discretion in consolidating his case

      with Lewis’. The State filed the same charges against Pernell and Lewis, but

      chose to file separate informations. Prior to trial, the State moved to

      consolidate the two causes, which the trial court granted over Pernell’s

      objection. Although there is no Indiana statute expressly allowing the State to

      seek consolidation after it has exercised its discretion and filed separate, rather

      than joint, informations, our supreme court has stated the trial court does have

      the authority to consolidate cases. Peck v. State, 563 N.E.2d 554, 556-57 (Ind.

      1990).1




      1
        In Peck, the State charged Peck and his brother under separate informations. Prior to trial, the State moved
      to consolidate the two causes, which the trial court granted over Peck’s objection. On appeal, Peck argued
      the trial court did not have the authority to consolidate the causes because no Indiana statutory provision
      expressly allowed consolidation after the State already filed separate informations. Our supreme court
      disagreed, stating a trial court does have the authority to consolidate two cases that were filed under separate
      informations, and further concluded Peck did not establish the denial of a separate trial subjected him to
      actual prejudice. Id. at 557-58.

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               Absent any statutory provision for consolidated trials of
               separately-charged defendants, it is within the trial court’s
               discretion to determine whether defendants’ trials should be
               joined. To show an abuse of discretion, an appellant must show
               that in light of what occurred at trial, the denial of a separate trial
               subjected him to actual prejudice.2


      Id. at 557.


[6]   Here, the premise of Pernell’s argument is that 404(b) evidence—which the

      State admitted at trial to show Lewis’, not Pernell’s, intent, state of mind, and

      relationship with Allen—caused Pernell to suffer prejudice. We acknowledge

      the State did present 404(b) evidence against Lewis through the testimony of

      Allen and police officers. This testimony spoke to past altercations between

      Allen and Lewis, including the allegation Lewis previously shot at Allen with a

      firearm. However, Pernell had full knowledge the State intended to present this

      testimony, Pernell stated in his opening statement that none of these allegations

      included acts by him, the witnesses were subjected to cross-examination, and at




      2
        In his Appeal Brief, Pernell argues he suffered considerable prejudice as a result of the consolidation and
      such prejudice denied him “a fair determination of guilt or innocence[.]” Appeal Brief at 11. This quoted
      language comes from Indiana Code section 35-34-1-11(b). This section governs instances where two or more
      defendants have been joined for trial in the “same indictment or information[.]” Ind. Code § 35-34-1-11(b).
      Under this section, the trial court shall order a separate trial of the defendants if the court determines a
      separate trial is “necessary to protect a defendant’s right to a speedy trial or is appropriate to promote a fair
      determination of the guilt or innocence of a defendant.” Id. Pernell does not cite to Peck and his references to
      Indiana Code section 35-34-1-11(b) are inapplicable because Pernell and Lewis were not joined for trial under
      the same indictment or information. Because we interpret his arguments as similar to those brought forth in
      Peck and Pernell and Lewis were not charged under the same indictment or information, we need not
      determine whether separate trials were necessary to promote a fair determination of Pernell’s guilt or
      innocence; rather, we need only determine whether, in light of what happened in trial, Pernell suffered actual
      prejudice as a result of the joinder. See Peck, 563 N.E.2d at 556-57.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016                Page 5 of 11
      no point did Pernell object to the admission of this evidence or request a

      limiting instruction admonishing the jury.


[7]   In addition, we note, despite Pernell not moving for severance of the trials, “a

      trial court must grant severance of trials where there are mutually antagonistic

      defenses and the acceptance of one defense precludes the acquittal of the other.”

      Lee v. State, 684 N.E.2d 1143, 1147 (Ind. 1997). As the State correctly points

      out, even if Pernell had moved for severance, Lewis stated he was with a group

      of family and friends on the afternoon of the shooting, and Pernell stated he

      was with a separate group of family and friends at the time of the shooting.

      Such alibis are not mutually antagonistic defenses. We are not persuaded

      Pernell suffered actual prejudice. Accordingly, the trial court did not abuse its

      discretion in granting the State’s Motion to Consolidate.


                                     II. Motion for Mistrial
                                      A. Standard of Review
[8]   A mistrial is an extreme remedy warranted only when no other curative

      measure will rectify the situation. Donnegan v. State, 809 N.E.2d 966, 972 (Ind.

      Ct. App. 2004), trans. denied. The denial of a mistrial is a determination within

      the trial court’s discretion, and we will reverse its decision only for an abuse of

      that discretion. Id. To prevail on appeal from the denial of a motion for

      mistrial, the defendant 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. Williams v. State, 755 N.E.2d 1128,

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016   Page 6 of 11
       1132 (Ind. Ct. App. 2001), trans. denied. The gravity of the peril is determined

       by considering the misconduct’s probable persuasive effect on the jury’s

       decision. Id. The trial court is in the best position to gauge the circumstances

       and the probable impact on the jury. Donnegan, 809 N.E.2d 966.


                                         B. Juror Misconduct
[9]    Pernell contends the trial court abused its discretion in denying his motion for

       mistrial. Specifically, Pernell argues he established a presumption of prejudice

       and the State failed to rebut the presumption. The State counters the trial court

       properly denied Pernell’s motion because the jury’s misconduct amounted to

       harmless error. We agree with the State.


[10]   Our supreme court recently clarified the appropriate procedure to be followed

       in instances of juror misconduct:


               Trial courts must immediately investigate suspected jury taint by
               thoroughly interviewing jurors collectively and individually, if
               necessary. If any of the jurors have been exposed, he must be
               individually interrogated by the court outside the presence of the
               other jurors, to determine the degree of exposure and the likely
               effect thereof. After each juror is so interrogated, he should be
               individually admonished. After all exposed jurors have been
               interrogated and admonished, the jury should be assembled and
               collectively admonished, as in the case of a finding of “no
               exposure.” If the imperiled party deems such action insufficient
               to remove the peril, he should move for a mistrial.


       Ramirez v. State, 7 N.E.3d 933, 940 (Ind. 2014) (quoting Lindsey v. State, 260 Ind.

       351, 359, 295 N.E.2d 819, 824 (1973)). Once a party moves for mistrial, he

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016   Page 7 of 11
       must show by a preponderance of the evidence (1) extra-judicial juror contact or

       communications actually occurred, and (2) the contact or communications

       pertained to a matter before the jury. Id. at 937, 940; Currin v. State, 497 N.E.2d

       1045, 1046 (Ind. 1986). Satisfying this burden creates a presumption of

       prejudice and shifts the burden to the opposing party to prove harmless error.

       Ramirez, 7 N.E.3d at 940. Here, it appears both parties agree Pernell

       established a presumption of prejudice.


[11]   After the bailiff discovered a map in the jury room, the trial court ordered the

       bailiff to immediately remove the map. Pernell then moved for mistrial. The

       trial court individually interrogated each juror, and each juror indicated he or

       she would be able to set aside the map, cease further discussions of the map,

       and base a decision solely on the evidence admitted during trial. The trial court

       then admonished each juror individually, stating they were not to have any

       discussions with other jurors about the map. Thereafter, Pernell renewed his

       motion for mistrial. The State argued any error was harmless, specifically

       contending the trial court’s “admonishment is appropriate to solve whatever

       prejudice there may be . . . .” Transcript at 750. The trial court denied Pernell’s

       motion. The trial court then assembled the jury and admonished it as a group,

       stating,


               [Y]ou are to reach a decision based on the evidence that you’ve
               heard, not on any discussions that you’ve had about this map
               which will not be provided back to you. You are to make a
               decision based on the evidence and please only have discussions
               about the evidence that you’ve heard.


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       Id. at 754-55. Following this admonishment, the trial court ordered the jury to

       resume deliberations.


[12]   We conclude the trial court properly followed the procedural steps detailed in

       Ramirez. Specifically, the trial court admonished each juror individually and as

       a group, and we presume each juror abided by the trial court’s admonishment

       not to further consider the map or discuss the map. See Street v. State, 30 N.E.3d

       41, 50 (Ind. Ct. App. 2015) (noting we presume a jury abides by the trial court’s

       admonishment), trans. denied. In addition, when the trial court interrogated the

       jurors, each juror stated he or she could set aside the map, cease further

       discussion of the map, and base a decision solely on the evidence presented

       during trial. Therefore, we conclude any error was harmless. Accordingly, the

       trial court did not abuse its discretion in denying Pernell’s motion for mistrial.


                                     III. Firearm Enhancement
[13]   Pernell argues the firearm sentencing enhancement the trial court imposed

       should be vacated because it is improper as a matter of law.3 In Crawford v.

       State, 755 N.E.2d 565 (Ind. 2001), our supreme court was tasked with

       determining whether a sentence imposed for attempted murder was subject to a




       3
         The State argues Pernell’s argument is waived because he did not object to attaching the firearm
       enhancement at the sentencing hearing, nor did he object to the trial court’s jury instruction as to the firearm
       enhancement. A trial court may not impose a sentence that does not conform to the mandate of relevant
       statutes. Parrett v. State, 800 N.E.2d 620, 622 (Ind. Ct. App. 2003). In addition, sentences that exceed
       statutory authority constitute fundamental error and are subject to correction at any time. Id. Therefore, we
       reject the State’s waiver argument.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016                Page 9 of 11
       firearm enhancement. The court reviewed Indiana Code section 35-50-2-11,

       which allows the trial court to enhance a sentence by five to twenty years if a

       defendant used a firearm in the commission of an offense, Ind. Code § 35-50-2-

       11(g), and defines an “offense” in relevant part as “a felony under IC 35-42 that

       resulted in death or serious bodily injury . . . .” Ind. Code § 35-50-2-11(b)(1).

       Because Chapter 35, Article 42 does not define the crime of attempted murder,

       the court reasoned it was not “an offense” within the scope of the firearm

       enhancement statute. Crawford, 755 N.E.2d at 568; see also Ind. Code § 35-41-5-

       1(a) (defining attempted murder as a Level 1 felony). Thus, the court

       concluded the firearm enhancement cannot attach to an attempted murder

       conviction. Crawford, 755 N.E.2d at 568.


[14]   Since Crawford, the legislature has remained silent. Although we feel it goes

       against common vernacular of today’s society, attempted murder is still not

       listed as a felony offense against persons under Chapter 35, Article 42.

       Therefore, we are bound by the supreme court’s literal interpretation of the

       firearm enhancement statute in Crawford and conclude the trial court illegally

       enhanced Pernell’s sentence.4 We remand to the trial court to vacate the

       sentencing enhancement.




       4
           The State acknowledges we are bound by the Crawford decision. Brief of Appellee at 23.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1087 | June 17, 2016         Page 10 of 11
                                               Conclusion
[15]   The trial court did not abuse its discretion in joining Pernell’s and Lewis’ causes

       for trial and in denying Pernell’s motion for mistrial. The trial court’s

       sentencing enhancement, however, is improper as a matter of law.

       Accordingly, we affirm in part, reverse in part, and remand with instructions to

       vacate the firearm enhancement.


[16]   Affirmed in part, reversed in part, and remanded with instructions.


       Najam, J., and Crone, J., concur.




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