MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Mar 26 2018, 9:28 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan P. Dillon                                           Curtis T. Hill, Jr.
Maritza K. Webb                                          Attorney General of Indiana
Dillon Legal Group, P.C.
Franklin, Indiana                                        Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenton B. Myers,                                         March 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A01-1709-CR-2157
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Brian H. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55D02-1507-F4-1071



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018            Page 1 of 14
                                       Statement of the Case
[1]   Kenton Myers appeals his convictions following a jury trial for burglary, as a

      Level 4 felony; resisting law enforcement, as a Level 6 felony; and resisting law

      enforcement, as a Class A misdemeanor. Myers presents the following issues

      for our review:


              1.      Whether the trial court abused its discretion when it
                      denied his motion for a mistrial.

              2.      Whether the jury’s verdicts are fatally inconsistent.

              3.      Whether the State presented sufficient evidence to support
                      his burglary conviction.


      We affirm.


                                 Facts and Procedural History
[2]   On July 13, 2015, at approximately 5:00 a.m., Myers broke and entered the

      attached garage of Timothy Dunbar’s residence in Martinsville. Once inside,

      Myers found Dunbar’s 1965 Chevrolet truck, which Myers then stole. Dunbar

      was asleep inside his house and awoke to the sound of the truck engine starting.

      Dunbar watched through a window as Myers drove the truck down the

      driveway, struck a vehicle parked there, veered into the yard, and then drove

      away. Dunbar called law enforcement to report the incident.


[3]   Morgan County Sheriff’s Deputy Jeremy Long arrived at Dunbar’s house, and

      Dunbar showed him damage to the garage door, which was the result of Myers’


      Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 2 of 14
      backing out of the garage; damage to the parked vehicle in the driveway; and

      tire tracks in the lawn. Deputy Long then drove around the area to see whether

      the burglar had abandoned the truck, and he quickly found it parked at the edge

      of a nearby cornfield.


[4]   In the meantime, Deputy Walter Stuart responded to a report of a man riding a

      lawnmower on Bain Road. At approximately 6:20 a.m., Deputy Stuart found

      the man, later identified as Myers, and tried to initiate a traffic stop by turning

      on his lights and siren, but Myers continued to drive the lawnmower for

      approximately one mile before he stopped in a ditch, dismounted the

      lawnmower, and “took off running over a gate into a field.” Tr. Vol. II at 200.

      Deputy Stuart pursued Myers on foot for approximately one-quarter of a mile

      before Myers “ran out of energy” and stopped. Id. at 203.


[5]   Deputy Stuart then


              ordered [Myers] to the ground several times. He was acting real
              erratic [sic], and just wasn’t making much sense, and [Deputy
              Stuart and Myers] kind of stood off facing each other. [Deputy
              Stuart] had [his] taser out. [He] ordered him to the ground
              several times. [Myers] wouldn’t go to the ground. He told
              [Deputy Stuart that] he wasn’t going to go to the ground.
              [Myers] lunged at [Deputy Stuart]. That’s when [Deputy Stuart]
              tased him and put him to the ground.


      Id. At that point, Deputy Stuart placed Myers in handcuffs, and he led Myers

      to his vehicle. Deputy Long arrived to assist in the arrest, and Deputy Long

      conducted a pat-down search of Myers’ person. In the course of that search,


      Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 3 of 14
      Deputy Long found in Myers’ pocket a gas cap and a set of keys with an

      address tag attached to it. Myers told the deputies that he had “t[aken the]

      lawnmower from a yard because he was tired of walking.” Id. at 172. Dunbar

      subsequently identified the gas cap as having been removed from his truck, and

      he identified the set of keys as belonging to him.


[6]   The State charged Myers with burglary, as a Level 4 felony; auto theft, as a

      Level 6 felony; resisting law enforcement, as a Level 6 felony; and resisting law

      enforcement, as a Class A misdemeanor. Prior to trial, the trial court granted

      Myers’ motion in limine, which, among other things, prohibited the State from

      referring to the lawnmower that Myers was driving just prior to his arrest as

      “stolen.” Id. at 8. Nonetheless, during his opening statement at the ensuing

      jury trial, the prosecutor stated as follows:


              And then this guy steals [Dunbar’s] truck, drives it through the
              back roads, blows the engine up so that it’s stuck on the side of
              the road, and then takes off on a riding lawn mower. Now, Mr.
              Myers, when he’s apprehended by the police, denied stealing the
              truck. He did admit that he’d stolen the lawn tractor. He said that
              he’d been walking and walking and walking, and just got tired, so
              he walked up into a yard and drove off with the lawnmower.
              That’s what he told the police.


      Id. at 118 (emphasis added). At the conclusion of that argument, defense

      counsel requested a sidebar to object to the prosecutor’s reference to the stolen

      lawnmower, and defense counsel moved for a mistrial. The prosecutor

      acknowledged the error, but stated that he would introduce testimony that

      Myers “said that he took the lawn tractor.” Id. at 119. The trial court stated

      Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 4 of 14
      that it wanted to “ponder this a little bit,” and defense counsel proceeded with

      his opening argument. Id.


[7]   At the conclusion of defense counsel’s opening argument, the trial court

      excused the jury, and the following colloquy ensued:


              Defense counsel: Your Honor, we had a hearing before trial
              started specifically delineating that evidence about the lawn
              mower would not be coming in about the word stolen or talking
              about where it was returned to, based on the fact that the State
              had not actually disclosed the witness who they’ve now identified
              as, you know . . . I would ask the Court at this point, based on
              the direct knowing and intentional violation of your order to at
              least admonish the jury, but I don’t believe it’s enough, I ask for a
              mistrial charged to the State.

              State: Judge, I apologize for using the word, the magic word
              stolen, in the heat of the moment. The fact of the matter is is that
              my understanding, and I guess I was wrong, but my
              understanding of the Court’s ruling was that we weren’t
              supposed to go into anything that suggested a particular victim
              that the lawnmower was stolen from. It was a bad choice of
              words, I’ll concede that. But, I didn’t talk about how close it was
              to where the vehicle was ditched, literally ditched. And my
              reference to it being stolen was simply a paraphrasing from what
              Mr. Myers actually said at the scene. But it was a poor choice of
              words, and I apologize. If the Court wants to admonish the
              jurors, that there is not any evidence and will not be any evidence
              that the thing was actually stolen, I’m fine with that.

              Court: Well this is frustrating. We have a pretrial motion, you
              know, this very same day, we have a discussion, you get your say
              so, didn’t really contest about using that word, and then you turn
              right around and do it. And you can say it’s the heat of the
              moment, but you’re a seasoned, decades professional at this.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 5 of 14
        And we shouldn’t be having these kinds of things pop up because
        you get riled up. You know. You ought to be the cool hand
        Luke in the room on all of this at this point in time. I don’t think
        it rises to the level of a mistrial. I’m curious what you do to
        admonish the jury without getting into the Streisand effect of
        pulling it out at this point. In some ways, it’s not that big of deal.
        I’m going to find an admonishment that I think works and we’ll
        present that to the jury before the commencement of evidence.
        The Motion for a Mistrial is denied. I don’t think that given the
        fact the evidence is going to be that he’s going to be described as
        stating that he took it out of someone’s yard, I think the event is
        part of the res gestae of the case. Characterizing and highlighting
        it as yet another crime that was committed is improper. And I
        don’t think that it rises to the level of a mistrial. But the State is
        warned that you need to be very factual about what happened,
        rather than characterizing that act when you can be talking about
        the charged offenses.

        State: Understood.


Id. at 122-24. Then, before the State presented its first witness, the following

colloquy occurred:


        Court: I have provided the copy of the admonishment that I
        intend to give to the jury to both sides. Without waiving your
        objection, are you requesting any changes to that?

        Defense counsel: Judge, I have no improvements to offer to it.

        Court: Okay. Do you wish to renew your Motion?

        Defense counsel: We do. I have to object to it in the grounds as
        not sufficient at this point. I just . . . I don’t think this bell can be
        unrung. It’s loud and clear, Liberty Bell ringing out from
        Philadelphia, so . . . .


Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 6 of 14
              Court: Well, I think the bell was already rung, because the
              evidence of this was going to going to come in as part of the res
              gestae of the case. I don’t appreciate the State highlighting it to
              the extent one could then argue that it’s creating evidence of
              another crime or wrong with the inference being that if one thing
              was stolen, another thing must have been. But, to me, the
              problem is the State highlighting it, and that was a very minor
              describing what it was in layman’s terms. I think the instruction
              is cured of . . . sufficient that a Jury can disregard the forbidden
              inference, so . . . .

              Defense counsel: I just move . . . renew the Motion for a
              Mistrial, or alternatively move to continue.

              Court: All right, well, those will both be denied. I don’t see any
              benefit to the continuance at this point. We’re now to the
              evidentiary portion of the trial. Before that commences, the
              Court would like to admonish the Jury as follows:

              [T]he State of Indiana, in its opening statement, referred to the
              defendant as having stolen a lawnmower described in his
              possession at the time that he encountered the sheriff’s deputy.
              This infers a legal conclusion that does not and will not exist
              in this case. While the evidence regarding the defendant’s
              actions and statements will be a part of this case for your
              consideration, you may not speculate as to the possible existence
              of unpresented surrounding facts, or the possibility of other
              uncharged and unproven allegations. You may not rely on or
              consider this possibility in any way in determining whether the
              State has proven the crimes charged in this case.


      Id. at 125-27.


[8]   At the conclusion of trial, the jury found Myers guilty of burglary, as a Level 4

      felony; resisting law enforcement, as a Level 6 felony; and resisting law


      Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 7 of 14
       enforcement, as a Class A misdemeanor. The jury acquitted Myers of auto

       theft. The trial court entered judgment of conviction accordingly and sentenced

       Myers to an aggregate sentence of eight years executed. This appeal ensued.


                                      Discussion and Decision
                                             Issue One: Mistrial

[9]    Myers first contends that the trial court abused its discretion when it denied his

       motion for a mistrial. “Because the trial court is best positioned to assess the

       circumstances of an error and its probable impact on the jury, ‘[t]he denial of a

       mistrial lies within the sound discretion of the trial court,’ and this Court

       reviews only for abuse of that discretion.” Lucio v. State, 907 N.E.2d 1008, 1010

       (Ind. 2009) (quoting Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000)). “The

       overriding concern is whether the defendant ‘was so prejudiced that he was

       placed in a position of grave peril.’” Id. (quoting Gill, 730 N.E.2d at 712)). The

       gravity of peril is measured by the probable persuasive effect of the misconduct

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

       v. State, 750 N.E.2d 370, 374 (Ind. 2001) (internal citations omitted).


[10]   Myers maintains that the prosecutor committed prosecutorial misconduct when

       he referred to the “stolen” lawnmower during his opening argument. Myers

       asserts that, “[n]ot only did this violate the verbal limine order, but it was a

       blatant violation of Ind. Evidence Rule 404(b).” Appellant’s Br. at 12. Myers is

       correct that the trial court had granted the motion in limine and prohibited the

       prosecutor from describing the lawnmower as “stolen.” Tr. Vol. II at 8. But


       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 8 of 14
       the court did not prohibit the prosecutor from presenting Deputy Long’s

       testimony that Myers told the deputies that he “took a lawnmower from a yard

       because he was tired of walking.” Id. at 172 (emphasis added). Indeed, Myers

       made no objection either to that testimony from Deputy Long or to Deputy

       Stuart’s testimony that Myers “took” the lawnmower from someone’s yard. Id.

       at 207. Given that the clear inference of the deputies’ testimony is that Myers

       stole the lawnmower, Myers cannot show that the prosecutor’s limine violation

       placed him in a position of grave peril. As the trial court observed when it

       denied the mistrial motion, “I don’t think that given the fact the evidence is

       going to be that he’s going to be described as stating that he took [the

       lawnmower] out of someone’s yard, I think the event is part of the res gestae of

       the case.” Id. at 123.


[11]   Further, it is well settled that, “where the trial court adequately admonishes the

       jury, such admonishment is presumed to cure any error that may have

       occurred.” Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009). Here,

       following defense counsel’s opening argument, the trial court admonished the

       jury as follows:


               [T]he State of Indiana, in its opening statement, referred to the
               defendant as having stolen a lawnmower described in his
               possession at the time that he encountered the sheriff’s deputy.
               This infers a legal conclusion that does not and will not exist in
               this case. While the evidence regarding the defendant’s actions
               and statements will be a part of this case for your consideration,
               you may not speculate as to the possible existence of unpresented
               surrounding facts, or the possibility of other uncharged and
               unproven allegations. You may not rely on or consider this
       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 9 of 14
               possibility in any way in determining whether the State has
               proven the crimes charged in this case.


       Tr. Vol. II at 126-27. And, both during voir dire and in the preliminary

       instructions, the trial court instructed the jury that arguments made by counsel

       are not evidence. We hold that the trial court did not abuse its discretion when

       it denied Myers’ motion for a mistrial.


                                             Issue Two: Verdicts

[12]   Myers next contends that, because the jury acquitted him of auto theft but

       convicted him of burglary, the verdicts are fatally inconsistent. In particular,

       Myers points out that, in order to prove burglary, the State was required to

       prove that Myers broke and entered the Dunbars’ garage with the “intent to

       commit a felony or theft in it” by “exerting unauthorized control over the motor

       vehicle of Timothy Dunbar[.]” Appellant’s Br. at 16. Myers maintains that the

       inconsistent verdicts indicate that “the jury disregarded or misunderstood their

       instruction as it relates to” the burglary charge. Id. at 18.


[13]   However, as the State correctly points out, our Supreme Court has held that

       “[j]ury verdicts in criminal cases are not subject to appellate review on grounds

       that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924

       N.E.2d 643, 649 (Ind. 2010) (emphasis added). In Beattie, a jury acquitted the

       defendant of possession of cocaine, but convicted her of possession of “the

       same cocaine” within 1,000 feet of a family housing complex. Id. at 644. On

       appeal, the defendant argued that her acquittal rendered her conviction based


       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 10 of 14
       on possession of the same cocaine “extremely contradictory.” Id. at 645. But

       the Court explained as follows:


               When a jury returns logically inconsistent verdicts, such a result
               could mean that it misunderstood its instructions. But it is more
               likely that the jury chose to exercise lenity, refusing to find the
               defendant guilty of one or more additionally charged offenses,
               even if such charges were adequately proven by the evidence.
               Such right of a criminal jury to decline to convict is well
               recognized.


       Id. at 648. And the Court concluded,


               even if we assume, arguendo, that the defendant’s jury verdicts of
               not guilty of the lesser-included offense of Possession of Cocaine
               and guilty of Possession of Cocaine Within 1,000 Feet of a
               Family Housing Complex were inherently inconsistent, such
               verdicts are permissible and are insulated from review on this
               ground.


       Id. at 649. Likewise here, assuming that the jury verdicts acquitting Myers of

       auto theft but convicting him of burglary were inherently inconsistent, they are

       not reviewable on appeal. Id.


[14]   Further, to the extent Myers asks us to “consider the inconsistency [here] as a

       limited exception to the Beattie holding,” we decline his invitation. Appellant’s

       Br. at 18. In support of that request, Myers cites to Marsh v. State, 393 N.E.2d

       757 (Ind. 1979), and Owsley v. State, 769 N.E.2d 181 (Ind. Ct. App. 2002), trans.

       denied. But in Beattie, the Court expressly “overrule[d] the standard advanced in

       Marsh and disapprove[d] of Owsley.” 924 N.E.2d at 649.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 11 of 14
                                Issue Three: Sufficiency of the Evidence

[15]   Finally, Myers contends that the State presented insufficient evidence to

       support his burglary conviction. Our standard of review on a claim of

       insufficient evidence is well settled:


               For a sufficiency of the evidence claim, we look only at the
               probative evidence and reasonable inferences supporting the
               verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
               not assess the credibility of witnesses or reweigh the evidence. Id.
               We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[16]   To prove that Myers committed burglary, as a Level 4 felony, the State was

       required to show that Myers broke and entered Dunbar’s dwelling with the

       intent to commit a felony therein. See Ind. Code § 35-43-2-1 (2018). Myers

       maintains that, while he was in possession of “relatively recent[ly]” stolen

       property, namely the gas cap and set of keys, there was no evidence that he

       broke into the garage. Appellant’s Br. at 20. In particular, Myers asserts that

       “[t]here was no admitted evidence of an observation made that the [garage]

       door had been closed the night before,” and there was otherwise no “visible

       signs of a break” into the garage. Id. at 18, 20. Myers also avers that there is no

       evidence that he was the person who stole the items from the garage.


[17]   First, it is well settled that, “[u]sing even the slightest force to gain unauthorized

       entry satisfies the breaking element of the crime” of burglary. Davis v. State, 770

       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 12 of 14
       N.E.2d 319, 322 (Ind. 2002). “For example, opening an unlocked door or

       pushing a door that is slightly ajar constitutes a breaking.” Id. Here, the State

       presented evidence that Dunbar kept the garage door to his house closed every

       night and that, at the time of the burglary, a side door to the garage was closed,

       but may not have been locked. We hold that the State presented sufficient

       evidence to prove the breaking element of the burglary conviction.


[18]   Second, to the extent Myers contends that he was not the person who

       burglarized Dunbar’s garage, that contention amounts to a request that we

       reweigh the evidence, which we cannot do. Our Supreme Court has held that,

       while


               the mere unexplained possession of recently stolen property
               standing alone does not automatically support a conviction for
               theft[,] . . . such possession is to be considered along with the
               other evidence in a case, such as how recent or distant in time
               was the possession from the moment the item was stolen, and
               what are the circumstances of the possession (say, possessing
               right next door as opposed to many miles away).”


       Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010). Further, it is well settled

       that evidence of flight may be considered as circumstantial evidence of

       consciousness of guilt. Brown v. State, 563 N.E.2d 103, 107 (Ind. 1990).


[19]   Here, the State presented evidence that someone broke into Dunbar’s garage at

       approximately 5:00 a.m., and at approximately 6:20 a.m., Deputy Stuart

       initiated a traffic stop of Myers in the vicinity of both Dunbar’s house and the

       abandoned truck. Myers did not stop, but proceeded for another mile before

       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 13 of 14
       getting off of the lawnmower and leading Deputy Stuart on a foot chase. Once

       Myers was apprehended, Deputy Long found a gas cap from Dunbar’s truck

       and a set of keys belonging to Dunbar in Myers’ pocket. We hold that the State

       presented sufficient evidence to support Myers’ burglary conviction.


[20]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1709-CR-2157 | March 26, 2018   Page 14 of 14
